#hes basing his standard of success on what colonial empires consider successful and as a result has lost a chunk of his humanity in doing s

[ich-theosaurus]

treasure planet is the romanichal movie ever i will not elaborate

[dragoneyes618]

Considered the Father of the Indian Nation, Mohandas Karamchand Gandhi (1869 – 1948), aka Bapu (a Gujarati endearment for “father”), was a lawyer, anti-colonial nationalist and political ethicist whose use of nonviolent resistance led the successful campaign for Indian independence from British rule and inspired worldwide movements for civil rights and freedom.

Assuming leadership of the Indian National Congress in 1921, Gandhi led nationwide campaigns for easing poverty, building religious and ethnic amity, ending untouchability and, above all, achieving self-rule. He famously began to live in a self-sufficient residential community, to eat simple food, and undertake long fasts as a means of both introspection and political protest. Bringing anti-colonial nationalism to the common Indians, he called for the British to quit India in 1942 and was imprisoned several times for many years in both South Africa and India. In August 1947, Britain granted independence, but the British Indian Empire was partitioned into two dominions, a Hindu-majority India and a Muslim-majority Pakistan, leading to extensive religious violence throughout the country.

Gandhi visited Punjab and Bengal, the primary affected areas, attempting to alleviate misery and, in the months that followed, he famously undertook several hunger strikes to halt the religious violence, with his final fast beginning in Delhi at age 78 on January 12, 1948. He was murdered a few weeks later by a militant Hindu nationalist unhappy about Gandhi’s defense of both Pakistan and Indian Muslims.

Gandhi’s first job was with a Jewish law firm in Johannesburg and some of his closest friends and confidants, both in Johannesburg (1893 – 1914) and later in India, were Jews. He lauded the Jewish spirituality, high standards, and sense of community and, after visiting the synagogue in Johannesburg during Pesach, he expressed his culinary delight with “the Jews’ unleavened cakes” and wrote that “you can almost say that I was keeping Passover with my Jewish friends.”

He, in turn, was always held in high regard by the Jews. In 1931, he met with members of Bene Israel to discuss their participation in the nationalist movement, but he suggested that they join in support of the movement only after India won its independence from the British, urging them not to become involved in politics before then because they constitute such a small minority.

The Bene Israel, sometimes referred to as the “Native Jew” caste, are a community of Jews in India said to be the descendants of one of the Ten Lost Tribes that settled in India many centuries ago. Starting in the second half of the 18th century after learning about normative Sephardic Judaism, they migrated to cities throughout British India, primarily to Mumbai, where they opened their first synagogue in 1796 and became prominent within the British colonial government.

Exhibited here is the editorial on the front page of the February 1948 issue of Schema that was dedicated to mourning Gandhi’s loss. After waxing enthusiastic about the greatness – indeed, the near deity status – of the late Indian leader, the editorial addresses Gandhi’s contribution to the Jewish community:

What does the passing of this great saint and believer in the universality of true religion mean to our small community in India? Our debt to him is no less unquestionable. Apart from the general principles of morality on which he based his every thought and action and which afforded all communities including ourselves the protection of the rock-like foundations of the true freedom and self-expression, he gave concrete expression to his sympathy for our cause and our sufferings on numerous occasions and in no uncertain manner. We are proud and grateful to place on record that he had the greatest respect and admiration for the Jewish people and all they symbolized – for he did not himself stand for what they had stood through centuries of persecution and suffering – the eternal principles of justice and morality against the savage hand of tyranny, the belief that the spirit shall triumph over the sword.

Indeed, Gandhi sympathized with Jews and saw their plight as similar to that of many Indians: 

My sympathies are all with the Jews. I have known them intimately in South Africa. Some of them became life-long companions. Through these friends I came to learn much of their age-long persecution. They have been the untouchables of Christianity. The parallel between their treatment by Christians and the treatment of untouchables by Hindus is very close. Religious sanction has been invoked in both cases for the justification of the inhuman treatment meted out to them. Apart from the friendships, therefore, there is the more common universal reason for my sympathy for the Jews… There the Indians occupied precisely the same place that the Jews occupy in Germany… A fundamental clause in the Transvaal constitution was that there should be no equality between the whites and colored races including Asiatics. There, too, the Indians were consigned to ghettos described as locations. The other disabilities were almost of the same type as those of the Jews in Germany. The Indians, a mere handful, resorted to satyagraha [nonviolent resistance] without any backing from the world outside or the Indian Government…

During a massive review of millions of its archival documents in 2019, the National Library of Israel unearthed a letter handwritten by Gandhi on September 1, 1939 – the very day that World War II broke out in Europe – in which he sends Rosh Hashanah greetings to Avraham E. Shohet, a local Jewish Indian official:

You have my good wishes for your new year. How I wish the new year may mean an era of peace for your afflicted people.

Shohet was head of the Bombay Zionist Association (BZA), president of the Bombay branch of Keren Hayesod, the Bombay city office’s Zionist organization, and editor of The Jewish Advocate, the official publication of the BZA and the Jewish National Fund in India.

But did Gandhi deserve the veneration and affection of the world’s Jews? The answer to that question is far from black and white.

It is doubtful that most Jews would consider Gandhi a great friend, or even a moral person, when they learn that, notwithstanding his characterization of Hitler as the ultimate in evil and as a man with whom negotiation is impossible, his solution to the Holocaust was that Jews should happily accept their fate and proudly submit themselves to mass extermination . . . which he readily admits would be the inevitable result of the Jews wielding “peaceful resistance” against the Nazis.

In a seminal letter he wrote from Segaon (a village in the Khargone district in the Indian state of Madhya Pradesh where he established an ashram and settled) – which he published as The Jews in the November 26, 1938 issue of the Harijan newspaper – Gandhi argues that “the German persecution of the Jews seems to have no parallel in history;” that “the tyrants of old never went so mad as Hitler seems to have gone;” and that “he is doing it with religious zeal.” He writes that “If there ever could be a justifiable war in the name of and for humanity, a war against Germany, to prevent the wanton persecution of a whole race, would be completely justified.”

However, because he does not believe in war under any circumstances, he concludes that “there can be no war against Germany, even for such a crime as is being committed against the Jews:”

Can the Jews resist this organized and shameless persecution? Is there a way to preserve their self-respect, and not to feel helpless, neglected and forlorn? I submit there is. No person who has faith in a living G-d need feel helpless or forlorn. Tetragrammaton of the Jews is a G-d more personal than the G-d of the Christians, the Mussalmans or the Hindus, though as a matter of fact in essence, He is common to all and one without a second and beyond description. But as the Jews attribute personality to G-d and believe that He rules every action of theirs, they ought not to feel helpless. If I were a Jew and were born in Germany and earned my livelihood there, I would claim Germany as my home even as the tallest gentile German may, and challenge him to shoot me or cast me in the dungeon; I would refuse to be expelled or to submit to discriminating treatment. And for doing this, I should not wait for the fellow Jews to join me in civil resistance but would have confidence that in the end the rest are bound to follow my example. If one Jew or all the Jews were to accept the prescription here offered, he or they cannot be worse off than now. And suffering voluntarily undergone will bring them an inner strength and joy which no number of resolutions of sympathy passed in the world outside Germany can. Indeed, even if Britain, France and America were to declare hostilities against Germany, they can bring no inner joy, no inner strength. The calculated violence of Hitler may even result in a general massacre of the Jews by way of his first answer to the declaration of such hostilities. But if the Jewish mind could be prepared for voluntary suffering, even the massacre I have imagined could be turned into a day of thanksgiving and joy that Tetragrammaton had wrought deliverance of the race even at the hands of the tyrant. For to the G-d fearing, death has no terror. It is a joyful sleep to be followed by a waking that would be all the more refreshing for the long sleep.

Gandhi even went so far as to send two conciliatory letters to Hitler, the first on July 23, 1939 and the second on December 24, 1940, in which he addressed the Fuhrer as a “friend” and wrote that he did not believe the German dictator was the “monster” that his opponents described. He raised the issue with Hitler of the Germans’ treatment of Poland and the Czechs – with nary a mention of the Jews – and he asked his closest friend, the Jewish Zionist Hermann Kallenbach (more on him later), to pray for Hitler.

Even after World War II, Gandhi essentially remained silent on the Holocaust and, most inconceivably, he spoke out against the “wickedness” of the trials of Nazi war criminals. In a June 1947 interview with his biographer, Louis Fischer, he said:

Hitler killed five million Jews [the correct number, of course, is six million Jews, but what’s another million Jews more or less?]. It is the greatest crime of our time. But the Jews should have offered themselves to the butcher’s knife. They should have thrown themselves into the sea from cliffs… It would have aroused the world and the people of Germany… As it is they succumbed anyway in their millions.

Gandhi defenders argue that, in urging Jews to accept martyrdom during the Shoah, he was only being consistent with his core values of pacifism and peaceful resistance and that this was not fatalism but, rather, an assertion of will so strong that it would deny the Nazis a sense of ethical and moral superiority over their victims. This position has not only been characterized as passivity bordering on cowardice but, I would argue, a naivete that is stunning, dangerous, and disgusting. Moreover, as I discuss in more detail below, Gandhi’s views of the Jews, the Holocaust, and Eretz Yisrael exhibit a sharp and indisputable double standard that is the very antithesis of “consistency”

Perhaps the Jerusalem Post said it best: in an article titled Repudiating Gandhian Pacifism in the Face of Mass Murder in 2016, the Post summarized Gandhi’s philosophy regarding the Shoah as “when some evil regime or group wants to attack and kill you, the worst thing you can do is try to run and hide to save your life.” No matter how much Gandhi may have sympathized with the Jewish condition, he was oblivious to Jewish survival.

Thus, in a 1939 response to Gandhi’s 1938 article, Martin Buber, the renowned Austrian Jewish and Israeli philosopher who had made aliyah from Germany only a short time earlier, wrote what should have been obvious to any rational person, let alone to a national leader and internationally-respected philosopher like Gandhi:

The five years I myself spent under the present [Nazi] regime, I observed many instances of genuine satyagraha [nonviolent resistance] among the Jews, instances showing a strength of spirit in which there was no question of bartering their rights or of being bowed down, and where neither force nor cunning was used to escape the consequences of their behavior. Such actions, however, exerted apparently not the slightest influence on their opponents. All honor indeed to those who displayed such strength of soul! But I cannot recognize herein a watchword for the general behavior of German Jews that might seem suited to exert an influence on the oppressed or on the world. An effective stand in the form of non-violence may be taken against unfeeling human beings in the hope of gradually bringing them to their senses; but a diabolic universal steamroller cannot thus be withstood.

Moreover, Gandhi extended his opposition to Jewish self-defense against Nazi genocide by resolutely opposing their right to go to Eretz Yisrael, whether to establish a Jewish State there or even to simply save themselves from death at the hand of the Third Reich. He argued that the mere Jewish agitation for a national home would provide justification to the Nazis to expel them – as if Hitler needed any additional excuses – and that the Jews should engage only in non-violence against the Arabs and “offer themselves to be shot or thrown into the Dead Sea without raising a little finger against them.” In March 1921, he issued a statement supporting the proposition that Muslims must retain control over Eretz Yisrael.

In his 1938 article, Gandhi – almost unbelievably – writes:

Several letters have been received by me asking me to declare my views about the Arab-Jew question in Palestine and the persecution of the Jews in Germany. It is not without hesitation that I venture to offer my views on this very difficult question… [After expressing sympathy for the Jewish plight:] But my sympathy does not blind me to the requirements of justice. The cry for the national home for the Jews does not make much appeal to me. The sanction for it is sought in the Bible and the tenacity with which the Jews have hankered after return to Palestine. [But] why should they not, like other peoples of the earth, make that country their home where they are born and where they earn their livelihood? Palestine belongs to the Arabs in the same sense that England belongs to the English or France to the French. It is wrong and inhuman to impose the Jews on the Arabs. What is going on in Palestine today cannot be justified by any moral code of conduct. The mandates have no sanction but that of the last war. Surely it would be a crime against humanity to reduce the proud Arabs so that Palestine can be restored to the Jews partly or wholly as their national home. The nobler course would be to insist on a just treatment of the Jews wherever they are born and bred. The Jews born in France are French. If the Jews have no home but Palestine, will they relish the idea of being forced to leave the other parts of the world in which they are settled? Or do they want a double home where they can remain at will? This cry for the national home affords a colorable justification for the German expulsion of the Jews.

Not surprisingly, in the wake of its October 7th butchery, this quote has been resurrected by Hamas, and its supporters around the world who argue that Gandhi, the great statesman and man of peace, was clear that “Palestine” belongs to the Arabs and that the Jews are, at best, interlopers.

In his article, Gandhi concludes:

And now a word to the Jews in Palestine. I have no doubt that they are going about it in the wrong way. The Palestine of the Biblical conception is not a geographical tract. It is in their hearts. But if they must look to the Palestine of geography as their national home, it is wrong to enter it under the shadow of the British gun. A religious act cannot be performed with the aid of the bayonet or the bomb. They can settle in Palestine only by the goodwill of the Arabs. They should seek to convert the Arab heart. The same G-d rules the Arab heart who rules the Jewish heart. They can offer satyagraha in front of the Arabs and offer themselves to be shot or thrown into the Dead Sea without raising a little finger against them. They will find the world opinion in their favor in their religious aspiration. There are hundreds of ways of reasoning with the Arabs, if they will only discard the help of the British bayonet. As it is, they are co-shares with the British in despoiling a people who have done no wrong to them… Let the Jews who claim to be the chosen race prove their title by choosing the way of non-violence for vindicating their position on earth.

Thus, argued Gandhi, the “real Jerusalem” was the spiritual one and, as such, Zionism was unnecessary and Jews could practice their faith in their native countries – including, as we have seen, Nazi Germany.

In Buber’s 1939 correspondence to Gandhi cited above, he noted that Arabs had themselves come to possess Eretz Yisrael “surely by conquest and, in fact, a conquest by settlement,” and he appealed to Gandhi to recognize the responsibility for violence and unrest that was shared by Palestinian Arabs, but Gandhi would not yield. Similarly, Moshe Shertok, as head of the Jewish Agency (later to become Prime Minster of Israel as Moshe Sharett), also asked Gandhi to raise his authoritative voice in favor of a Jewish autonomous government in Eretz Yisrael, but he refused.

Statue of Gandhi and Kallenbach outside Rusne synagogue in Lithuania (2015).

Moreover, A. E. Shohet, the leader of the Indian-Jewish community and Gandhi’s good Jewish friend, reached out to Hermann Kallenbach, a wealthy Jewish Zionist architect and carpenter to whom Gandhi referred as his “soulmate,” to intervene with Gandhi on behalf of Zionism. In May 1910, Kallenbach had funded the establishment of Tolstoy Farm, the South African prototype for Gandhi’s ashram, where the two had lived together; Ghandi once wrote to him “Your portrait (the only one) stands on the mantelpiece in my room . . . even if I wanted to dismiss you from my thoughts, I could not do it.”

How to explain Gandhi’s outrageous views on the Holocaust and Israel? It certainly wasn’t due to antisemitism, since he loved all people and peoples – including, as we have seen, Nazis and terrorists – and he often spoke out in support of Jews. Some authorities suggest that he adopted his views on Jews because he understood Judaism only through the lens of Christianity and that he reduced Judaism to a religion without considering its nationalistic character and, as such, he excluded Zionism from the Jewish identity. Moreover, his closest Jewish friends, including Kallenbach and Sonya Schlesin, were all universalists largely ignorant of rabbinical philosophy and law and post-Biblical rituals and customs; thus, for example, Gandhi condemned the Bible’s “eye for an eye” rule for its inhumanity and violence, wholly unaware of the oral law teaching that the Biblically proscribed punishment was never meant to be interpreted literally but, rather, that the tortfeasor must compensate his victim through the payment of financial damages.

Another proffered explanation for Gandhi’s anti-Zionism was that, although he was well-informed about the special Jewish relationship with Eretz Yisrael from Kallenbach, Schlesin, and others, his pro-Arab bias and battle against British colonialism and imperialism trumped all other considerations so, unlike every other people, religion, and nationality, he chose to disregard Jewish singularity. Moreover, his desire to placate Hindus and Muslims and keep them united in India surely colored his attitude towards Zionism. In a manifestly undeniable double standard, he held Jews to the highest possible spiritual standard while judging the “proud Arabs” by the “accepted canons of right and wrong.”

Double standards seem to be the rule, rather than the exception, when it came Gandhi’s attitude to the Jews. As another example – in what can only be characterized as a truly monstrous double standard – he acknowledged that nonviolence was not possible for the Polish people in 1939 and praised their violent resistance to Hitler, at the same time he was telling the Jews to go peacefully and joyfully to death by their Nazi executioners. He was nominated for a Nobel Peace Prize five times, but never won; yet, he continues to be admired by many Jewish leaders, including David Ben Gurion, who hung a photograph of only one person in his bedroom: Mahatma Gandhi.

[helsung]

one conceit of integra’s characterization in canon that i wholeheartedly disagree with & have elected to rewrite completely is her unwavering patriotism & dedication to serving the british crown .  while not at the forefront of her motivations, it’s an implication of her objection to all which mocks the values she upholds, the values of her country, her people & her religion .  integra chastising others for not befitting the british standard & her aversion to that which is foreign ( iscariot ), or other / unnatural ( vampire-kind ) .  it’s persistent & unquestioning, she bows before the queen all the same, she accepts the unfairness of the round table’s treatment, the unreasonable blame based upon her, even when her servant rejects it as the injustice that it is .  she’s molds herself in the archetype of the british gentleman, self-assured, cocky, almost mocking in her adherence as the men she grew up around failed to match it as much as she .

she is presented as a woman whose sense of national & cultural identity is quintessentially british, a woman whose loyalties lie with with the heart of the british empire itself, the royalty which oversees all from the shadows of secrecy .

it’s no surprise then that so many fanworks whitewash integra to hell & back, ignore an aspect of her character written down very clearly in her design sheet, that she’s of indian descent .  the manga & OVA too overlook it, the only attention brought to the fact is in her design, being visibly non-white .  we see the only existing depiction of integra’s mother in the gonzo adaption, wearing what appears to be a saree, & that’s it .  it’s honestly so bad that i’ve had at least two people thank me for choosing to write integra as indian, which is nice to hear but i shouldn’t be thanked for doing the bare minimum & it illustrates just how much hellsing fails at acknowledging that one of its leads isn’t white, not just in the act of never having integra acknowledge or interact with the culture of her ancestry, but having her serve the empire & royalty which has oppressed the indian people for almost a century .

which is why i’m intensely uncomfortable with the idea of integra’s unwavering patriotism, i don’t wanna write the story of a woman of indian descent brainwashed from birth into believing the lie of the greatness of britain’s empire, & i don’t think integra lacks the awareness or ability to recognize that britain’s foundation is built on fabrication .  a history of colonialism & oppression twisted into tales of bravery & heroism, monsters turned into saviors, victims turned into perpetrators, blamed for their plight, every country with a colonialist past rewrites its history in order to justify its continued existence .  britain is a rotten place, with museums filled to brim with the pillaged treasures of more successful civilizations, & integra is not one to ignore the truth the government is trying so desperately to hide .  after all, she’s apart of it .

she serves not the crown nor its bearer, not the interests of the round table on which she sits .  these are merely allies of circumstance, allies guaranteed by birth-right to a woman born in a dying hereditary hierarchy, allies who have spent much of her early life attempting to undermine the authority she was entrusted, allies she grows to resent for more than the injustices committed against her .  in due time, integra reasons that what she does serve is her father’s memory, the legacy he left in her hands, twisted as it was by him & abraham & their duty to the british empire .  she reasons that her duty is to the people of britain, the many whose spirits have been crushed by decades of austerity upheld by her peers, that for them more than herself she must feign unflinching loyalty to the british flag, to the lie of its greatness, for a time, until her power grows greater than its, & hellsing can fulfill its purpose, riding the kingdom of monsters .

integra spent a lot of her early childhood travelling through & from mumbai, her father wanting her to connect with her late mother’s side of the family, who until integra’s birth & jayashree’s subsequent death had maintained little contact with the van helsings .  they too were monster hunters of a sort, with dealings of their own, & not too pleased with their daughter when she ran off with arthur to london, but after the tragedy of jayashree’s death, they wanted to offer arthur & his daughter everything they could .  for arthur these visits were under the guise of selling the helsing estate in mumbai back to his wife’s family, business as expressions of hurt & mourning .  for a young integra, they were a chance to learn about a mother she never had the chance to meet, & she quickly found herself apart of a family which until then felt so much smaller, her aunt was a warm & welcoming figure, a mentor much like her father, her cousins were eager to accept her into their games, & grew to be like brothers in short time .  she learned of maharashtra & its history, its culture, learning to speak marathi, of another aspect of her legacy .  it was a childhood quite unlike the one in london, & arthur took her on many trips in his business dealings with jayashree’s family, they were brief moments of levity from the dread hanging off the hellsing mansion’s walls, until the day of his death .

afterwards, integra could never find time to return, with her father’s organization in her hands & so much training left to do, she could only manage infrequent contact with the other side of the family .  letters, phone conversations, urging her to return, or better yet, urging her to leave behind the hellsing organization & live with them, she was always welcomed there, she always had a place in mumbai should london become a weight too hard to carry .  she’s considered it, many times, of course, the memories of mumbai were her fondest, but duties always came first .  her father had left her much to do, & she owed him for everything he’d done for the semblance of a normal childhood .  she’s tried, constantly, to make time for her family, a large gap is a busy schedule to allow for travel, but it never worked .  instead, her aunt elected to send her gifts, for any reason she can muster, birthdays & other holidays, always packed with food & whatever tokens she thinks will remind integra of mumbai .  for her birthdays, integra always receives a new, finely crafted saree which she wears for special occasions .

it’s a careful balancing act, to forego the values you were taught growing up, to become something other than the role you were prepared for, the role you were made to fit & yet still met with rejection from those who expected someone else .  all the while maintaining the good graces of the crown & the stolen jewels which adorn it .  for a long time, integra tries to unlearn the conservative anglican principles on which the hellsing organization was founded, to which the van helsings gave themselves to in exchange for the power to vanquish their historic enemy .  she grows distant from the memory of arthur & the lessons left to her in the last years of his life .  the more she grows as her own woman, the closer she becomes in spirit to her mother, to the other aspect of her legacy, & she’s better for it .  integra builds something new from everything her parents left her, crafting her own place in history, & the hellsing organization gains a greater purpose, not to defend the united kingdom from the inhuman creatures which reach its shores, but to rid it of the ones already there .

[luimnigh]

The True Allegory of the Faunus Plot

Or: the Faunus Plotline is actually great, y’all are just Amero-centric.

I’ve always enjoyed the Faunus Plotline in RWBY, and I’ve never really understood the criticisms. But recently, I saw someone talking about how “Adam doesn’t fit the Malcolm X role” and I had a realization why.

For natural reasons, the African-American Civil Rights Movement and subsequent movements are the most prominent touchstone to Americans on the subject of racism and civil rights. It’s the thing that you guys automatically compare stories with racism allegories to. And while the Faunus Plotline does have parallels, it fails to follow that sort of narrative, and as a result it’s kinda throwing people off.

But I don’t think that’s a failure of writing. I think the fandom, as a whole, is looking at the wrong racism.

Now, let me be clear: no matter what race you are, if you feel that the Faunus Plotline represents you, that is completely valid. I’m not here to take that away from you. All oppressed peoples face similar struggles.

But I believe that the intent of the writers is not to create an allegory for African-American discrimination, but instead to create an allegory for Anti-Irish discrimination.

Or, TL;DR: The Faunus are Irish, Atlas is Britain, Vacuo is America, and our heroes are partaking in Gulliver’s Travels.

Confused? I’ll explain under the cut.

Part One: The Faunus As Irish

I started recognizing the parallels between the Faunus Plotline and the history of Ireland around the Volume 4/Volume 5 hiatus. It started off, as the plotline did, with the White Fang.

The evolution of the White Fang matches incredibly well with the evolution of the Troubles in Northern Ireland. In the mid-1960s, inspired by the African-American Civil Rights Movement, an Irish Civil Rights Movement sprung up in Northern Ireland. While there was no official legislation discriminating against the Irish specifically, there was rampant institutionalized discrimination; voting laws that ensured only homeowners could vote (not many Irish owned homes, and many avenues towards homeownership were discriminatory); and gerrymandering that ensured Unionist control over local government, even in locations where Unionists were a minority.

These protests maintained a policy of non-violence. But they were often met with violence, from both counter-demonstrators and police forces. Which lead to protestors arming themselves for self-defense

Thanks to police violence, the situation in Northern Ireland deteriorated into rioting and violence in the streets. Which lead the British Military being brought in to restore order, which lead to an escalation of tensions as they took the Unionist side of the conflict The situation was exploited by a paramilitary force called the Irish Republican Army, which originally advocated for self-defense, but after a schism in the group, became determined to wage an armed struggle against British Rule in Northern Ireland.

You might be seeing the parallels now.

They waged a campaign of guerilla warfare for several decades, striking not only military and political targets, but also commercial targets. They were held in high esteem by the majority of the Irish population of Northern Ireland, seen as defenders of the community. They were seen by some as holding themselves to “standards”. For example, alerting authorities of bombing targets in advance so that they could evacuate the area of civilians, causing only infrastructural/material damage. Despite this, there were still civilian casualties across the entire campaign.

Over the course of the Troubles, civilian deaths began to sour opinion towards the IRA. People turned away from them due their growing disregard for such civilian casualties, ultimate leading to a growth in popularity for the peace movement. This ultimately culminated into a series of ceasefires and the IRA coming to the table and signing the Good Friday Agreement in April 1998, a peace deal which stands to this day. The last of the public goodwill towards armed conflict died in August 1998, when an IRA splinter group bombed the town of Omagh, killing 29 people, all civilians.

You can see the parallels right? The White Fang began as a peaceful Civil Rights Movement, were forced into a policy of self-defense due to violence against them, and the movement was co-opted by a faction advocating waging a campaign of violence, but violence that they held to “standards”. However, over the course of the campaign, these “standards” began to be disregarded and ultimately the Faunus turned against the White Fang. Hell, both armed campaigns had tacit approval from the people of the “homelands” (Menagerie/the Republic of Ireland) for the majority of the conflict.

But the parallels with Irish history aren’t just limited to the Troubles. The Faunus Rights Revolution took place in the aftermath of The Great War after promises of equal rights turned out to be false. Meanwhile, the Irish War for Independence took place in the aftermath of The Great War (World War I) after promises of a devolved parliament turned out to be false.

And there are even parallels between the epicentres of discrimination for both peoples.

Part 2: Atlas As Britain

Let’s not beat around the bush here: in history, Britain has treated Ireland and the Irish horribly. And Atlas seems designed to parallel Britain in many ways, especially the British Empire at its height. The largest fleets in their respective worlds; centres for the development of science and technology; stuck on a cold, wet island with limited resources; having a neighbouring land that it controls and takes resources from; a history of discriminatory practices against races it believes are beneath it.

Hell, stop for a minute and think for me? Give me a named character that practices anti-Faunus discrimination.

Cardin Winchester? Based on Henry Beaufort, the Cardinal of the English City of Winchester.

Roman Torchwick? Visually based on Alex DeLarge from A Clockwork Orange, a work set in a futuristic Britain.

Caroline Cordovin? Based on the nursery rhyme The Little Old Lady Who Lived in a Shoe, itself speculated to be about Queen Caroline of Great Britain.

And I know what you’re about to say: the Schnees. They’re German, right? Yeah, but that plays into the theme of “Atlas as Britain” too. The Schnees are surrounded by Royal imagery (“a royal test���, “ice queen”). They’re Atlas’ Royal Family.

Did you know that since the 1700s, the Royal Family of Great Britain has been German? First the House of Hanover, then the House of Saxe-Coburg and Gotha, which changed it’s name to the House of Windsor due to a rise in Anti-German sentiment in World War I.

Honestly, though? While I’d noticed the parallels between the history of the Faunus and history of the Irish before, I didn’t personally see the parallels between Atlas and Great Britain until the Volume 6 finale. Which also convinced me these parallels were intentional.

You see, after seeing Atlas for the first time, the second thing to pop into my head (right after “Cloud City”) was “Laputa”.

The Castle in the Sky from the Ghibli film? No, it’s namesake.

Part 3: This is where Gulliver’s Travels comes in.

You’ve heard of Gulliver’s Travels, right? It’s that kids story with the guy who washes up on the island full of little people.

Yeah, most of what you know about Gulliver’s Travels is wrong. It was written by Jonathan Swift, the pre-eminent satirist of the day, and it’s work of satire. It’s supposed to be a crude parody of Robinson Crusoe, with subject matter not meant for the eyes of children. The version you see as a child is heavily sanitized, and usually has most of the story cut.

See, Gulliver ends up in four different lands. First, Lilliput, where he is big and important. Lilliput obsesses over trivial matters, and when Gulliver is sent on a war mission for Lilliput, he completes it but not to their satisfaction. Ultimately, while doing something he believes is helping (putting out a blaze in the Queen’s Palace), he commits a faux pas (he did it with piss) and ends up having to leave Lilliput.

Yes, I am drawing parallels with the Beacon Arc.

Then, Gulliver ends up in Brobdingnag, the land of giants. This is usually the furthest the adaptations ever go. In Brobdingnag, he’s small and unimportant, but still a curiosity that people want to possess and objectify. Unlike in Lilliput, he lacks agency, despite meeting with the leader of Brobdingnag himself. He’s even kept in a house for the majority of his time there, only taken out when wanted.

Yeah. This is starting to sound a little familiar.

On his third voyage, he ends up in Laputa. Laputa is a flying city full of upper-class scientists. It takes the resources of the land below, Balnibarbi, and if they ever seek to rebel, they use their air superiority to violently crush the rebellion (usually by throwing rocks down, occasionally by landing the city on the offending rebels). The men of Balnibarbi are obsessed with science, but not to any useful pursuits, attempting things like extracting sunlight from cucumbers. They’re so self-absorbed they literally cannot see things going on right in front of them, including the affairs of their neglected wives.

Laputa was designed by Swift explicitly as a condemnation of the colonial practices of the British Empire, and “science for science’s sake” attitude of the Royal Society of London.

In fact, in a series of paragraphs considered too bold to print, Swift details the successful rebellion of the city of Lindalino against Laputa. They build giant towers of magnetic materials to prevent Laputa from flying above them, and would tear the city apart if they tried to land on top of them.

Lindalino is supposed to represent Ireland, Dublin specifically. (Lindalino -> Two “Lin”s -> Double “Lin” -> Dublin) Swift was Irish himself, and a known supporter of Irish Independence.

It was when I saw that Atlas was a floating island full of scientists, and the epicentre of anti-Faunus discrimination, that I began to believe this couldn’t be coincidence anymore. It had to be purposeful. RWBY was making reference to Gulliver’s Travels, and specifically to a part of it that was based on Anglo-Irish relations, while setting the stage for a large-scale Human-Faunus conflict. I could accept that the previous parallels were accidental, an unconscious thing added to the story, but Atlas having striking similarity to Laputa was too much of a coincidence to reasonably be a coincidence.

Part 4: Vacuo, and the future.

So where does Vacuo fit in?

Well, Vacuo is a lawless desert, but it’s also a place where Faunus aren’t discriminated against. The one Vacuoan Faunus we meet is totally disconnected from the struggles of the rest of the Faunus, and has to be educated about what “his people” go through on a regular basis before deciding to take up the cause.

Vacuo is America.

“Lawless Desert” is a pretty apt description of the entire Western genre, which is uniquely American concept. And the disconnect of the Vacuoan Faunus parallels the disconnect Irish Americans have from the struggles of the Irish. Irish Americans don’t face discrimination at all nowadays, they’re considered “white”. Bernadette Devlin, a major figure in the Northern Irish Civil Rights Movement, found she had more in common with African Americans than Irish Americans when she visited the United States.

As for the Gulliver parallels… well, the fourth place Gulliver ends up in is the Land of the Houyhnhnms, a race of talking sources who’s society Gulliver becomes enamoured with, to the point of being blind to it’s faults, like it’s mistreatment of the Yahoos, a race of human-looking animals. This doesn’t even change when they cast him out as danger to their society, and he grows to shun his own people and continue to talk to horses once he arrives back in England.

Swift meant this as parody of those who became enamoured with “exotic” countries, claiming them to be objectively better than their own, while being blind to the flaws of said nations.

Yeah, Jonathan Swift was dunking on Weeaboos back in 1726. Truly a man before his time.

I guess what this means is that while Vacuoan society is better in some respects than the rest of Remnant’s, it’ll still be worse in others, though our heroes will be attracted to it’s virtues.

Conclusion

So yeah. This is what I think of the Faunus Plotline. As an Irish person, I find it to be a great allegory for discrimination, because it parallels the situation my people have faced in the past. If you’re a person who hasn’t liked the Faunus Plotline so far, I hope this perspective/theory has helped or will help you enjoy the Faunus plot more. In the end, we all deserve to enjoy the stories we consume to the fullest possible extent.

So, thanks for coming to my TED Talk, next time I’ll be telling you guys why I think Remnant doesn’t use the Gregorian Calendar.

[cerastes]

I’ve said this before, but seriously, what is it with Zeon being really good at things it shouldn’t be good at, and being really bad at things it should be good at?

Zeon, the people that live in space colonies, practically invented and revolutionized space combat and Mobile Suit combat as a whole. Before the start of the show, we had stuff like the Saberfish, space fighter jets, standard sci fi stuff, and then, the space people invented Space Giants to decimate the Federation in combat. They had the Zaku II and the Zudah out there, and this is already where the problem begins: The Zudah was manufactured with cutting corners in mind, so you know what’s a cute little thing it could do randomly during operation? Explode. Zudahs are the fastest, bluest coffins in space. One half of the first battle-made suits Zeon manufactured were already really good at killing their own pilots, right out of the gate. Was this foreshadowing? Very much so.

So the Zaku II was a success. It didn’t kill its pilot, for starters. That was already like, bang, pop the bottles, let those champagne corks fly. We made a weapon that effectively kills them and not us. Impressive! So the Feddies take a one-sided beating because their Saberfishes can’t do jack against Zaku IIs (with the exception of ace pilots like Yuu Kajima), so they say, hey, let’s do what they did, let’s make Big Metal Giants, too! And then the Federation just completely outdoes the space people that made space weapons for space combat at making space giants. They make a couple of prototype units, put a lot of tech and money into them, and there it goes, there goes the weapon superiority.

Mind you, far be it from me to say it took one suit to turn the war around, lets be fair to Zeon about it. It took like four. And one of them was piloted by an actually brat idiot moron kid, name of Amuro Ray (Larva) who was so bad at piloting that, by all means, he should’ve been eviscerated three seconds by any competent space soldier, except his space giant’s stats were so jacked that he could no joke take concentrated pointblank fire from a Zaku II’s machine gun and be largely unaffected. GREAT job, space people.

So the space people are like “Oh man, we gotta make more weapons! We gotta make new weapons!” and so some engineer suggests “hey, let’s make improved versions of our base kit with better, modernized systems and parts!”, but that would’ve been smart, so he was fired, and the project was handed to the idiot that instead suggested to make their next mobile suit have a hand shaped machine gun instead of an actual hand and an electric whip. Result: The Gouf. Who no one liked using because it only had one hand. The machine gun hand wasn’t even powerful enough to justify not having a whole hand for it. It just shot small caliber rounds, more of an anti-personnel measure than anything, or to target sensitive enemy parts like joints or sensors. You know what also does this? Head mounted vulcans that don’t replace a god damn hand, like the Gundam had.

And it was just disaster after disaster until Zeon said, “woah, maybe, maybe we need more standard weaponry that isn’t gimmicky”, so they hired the guy they fired before and that’s when they made the Gelgoog, AKA a space giant that actually was worth anything. This is after stuff like “My nipple is a cheap beam gun that blinds you” Doms and “Whatever The Hell I Am” Zakrello. Just, how are you so bad at something you invented?

But you know what the space people were REALLY good at? Amphibious Suits. WATER SUITS, PEOPLE. THE SPACE PEOPLE WERE GOOD AT NAUTICAL NONSENSE.

Makes sense, when you consider the VAST OCEANS OF SPACE.

The Z’Gok? An actual monster. It possessed incredible agility and maneuverability, enough to outdo GMs in close quarters. It possessed functioning beam guns on its hands, which is MORE THAN THE DOM’S NIPPLE CAN SAY. It had missiles, too, in case kinetic weaponry or explosives were needed, and it could move really, really well both on land and on water. What? How? Did the nautical division of the Zeonic Company just hire the dude the others fired so they could make useless machine gun hands and Zakrellos? Smart move, honestly, because aside from the Z’Gok, there’s the Hygogg, AKA A Feddie’s Worst Nightmare, a beast in shape and power, and the Zok, which, despite its silly name, was practically a walking beam battery. The Zok chokeslammed the Gundam in one episode. Tell me WHICH non-nautical Zeon suit ever went Wrestlemania on the Gundam. Char Kick doesn’t count.

Zeon has the most ass-backwards design history in space empires this side of science fiction, what a MESS. Their master plan should’ve been to flood Earth instead of dropping large stuff on it from outer space, so they could just unleash ten thousand Z’Goks and just one-sidedly beat them down to a pulp.

Their final boss mecha was a crazy legless reindeer cyclops with detachable head and hands, for goodness’ sake.

[grimminsanity]

Let’s talk about this.

Okay, but like. Can someone explain to me why there’s so much hate for the design change for the Klingons? I personally find them extremely interesting to look at, designed a lot more alien than before, and their armour is utterly stunning? Like, just, wow??? I mean, I get it, they’re not humans painted up to look different like in TOS, nor are they Klingons like Worf in TNG, or the pierced design in the AOS movies, but in my mind, I VERY much picture them to be Klingon like any other Klingons shown in the series., and BOI AM I GONNA TELL YOU WHY I THINK THAT.

(look at these handsome bois, all of them are the best.)

There was often times that people attempted to connect Klingon from TOS to the ones that were shown later with brow ridges because we as humans like continuity and want everything to flow together. However, it was hard to get a concrete answer to why exactly Klingon ended up looking as different as they did compared to their first version.

Some content in the form of the canon novels, however, may have given us an answer!

Keep in mind, this is what I know of the novels and, from my understanding, is considered canon since it was brought up in or hinted at in other media.

In them, it was stated that there was a type of Klingon augment virus that spread through a large portion of the population due to Klingon researchers attempting to create a strong, better Klingon by bio-engineering them.  Through the use of human augment embryos left over from Earth’s eugenics wars that were found in a hi-jacked Klingon bird of prey that had been destroyed in orbit of the Qu’Vat Colony, they began to, essentially, splice it in with great caution. They did this in part because they feared human augments being staffed on ships would overwhelm the empire.

It worked, - how amazing right?!, - creating stronger and more intelligent Klingons, but a lot of the subjects that were used in these experiments began to show more physically human characteristics, from the simple to the blatantly obvious, including personality and loss of, - YOU GUESSED IT, - the well known forehead ridges!

(pictured: Klingon ridges dissolving due to augment DNA being used. also, a good Klingon ‘O’ face.)

One of the test subjects they used, however, had the Levodian flu, and the mixing of the flu with the augment DNA pretty much messed up all the controlled experimentation by the researchers and created an epidemic that nearly killed all the klingons.

Still with me?

Millions within months were infected. The researchers scrambled to attempt to find a cure. First, attempting to capture Doctor Arik Soong led nowhere as, lo and behold, the doctor was in a high security detention facility. Their next attempt was with Doctor Phlox with Phlox being forced to work with Antaak, the main Klingon researcher, to find that cure.

Problem is that the Klingon High Council got really tired of waiting for them to get it finished, and went on to destroy infected colony planets to clear the virus.

Basically, the research team was put under a heavy clock with nothing else to do but to not cure the virus, but stabilize it, because it would apparently take them weeks to try and make the cure. They were successful in stabilizing it early on in the infection, -  after the cranial ridges had dissolved and some minor neural re-ordering had occurred (which caused the personality changes), - and with the help of Admiral Krell, they called off the destruction of the planets! The cure was made with the new amount of time and was passed around, helping solve the problem of the whole dying and mass extinction thing.

Problem is, the cure also caused many Klingons to lose their brow ridges.

(Antaak with his ridges, prior to the cure being administered.)

(Oh! And there they go, - poof! - post cure!)

Thing is, any descendants of these Klingons would pass on the genetic human-like appearance.

This all happened back in 2154!

The Klingons we see in TOS are placed around 2267 are the descendants of those same Klingons!

No one in the Federation really thought much else about it because they simply didn’t know any other Klingons aside from them!

Among the Klingon researchers and some of the population, there was a great worry that these same Klingons would be considered outcasts due to their appearance and mental and personality changes, - cowardice, in example, was one such problem - but, were later on able to hold positions of power, even receiving the title of Dahar Master and getting their statues in the Hall of Heros on Qo’noS -  like, ie. General Kor in TOS which many people are familiar with!

Later on, it was available to some to get the brow ridges cosmetically added back on; however, there may have been more done, medically, that helped reinsert the Klingon head ridges as we see them from TNG and later on.

HOWEVER.

ALL OF THAT SAID.

HERE COMES MY HEADCANON OR UNDERSTANDING OF THE SITUATION FOR WHAT WE SEE IN STAR TREK: DISCOVERY.

Some times, Klingons considered these ‘augmented’ Klingons to be lesser then and were not ‘True Klingons’, - and as far as I remember, this is a thing that was talked about in canon as well, - and lo and behold, the idea of purity comes into play!

Forget that it’s a fucking dick move to do, let’s try and keep Klingons pure, guys!

How do we keep Klingons pure?

Marry between the royal houses of the High Council.

OBVIOUSLY.

To us, that may seem weird and a little squicky, but consider that this is something that royal families in our past have done on multiple occasions! It wouldn’t be that far off from thinking that the Klingon royal houses would due the same! Due to this, there have been lots of medical and genetic problems due to families attempting to keep the line pure.

Anywhere from reduced intelligence or personality changes to physical deformities, - larger, oddly shaped heads, cleft lips, blood disorders, - to what else you can think of! 

While it seems that the Klingons in ST:D are still, obviously, intelligent, it comes to our understanding that their physical differences are much different to what we have come to understand to be the norm in a standard Klingon. 

The ridges are more aggressive, pushing out the profile as well as following the line of the neck into their armour, the brows heavier, the noses wider with two nostrils and no dip slope of the nose, no hair, oddly shaped heads due to the size of the ridges, most likely, smaller ears pressed closer to the skull,  more slurring due to possible throat differences, and harsher, grating noises in the throat that we don’t normally hear even in normal Klingons.

Then again, that last one may be more due to a possible dialect change for spoken Klingon in the High Council or a possible House dialect, which, could also be possible. This is, after all, an alien language that we only know one side of. 

I don’t know, my xenolinguistics is a little rusty!

Moving on to their armour, check out this utterly stunning costume design!

The Klingons in ST:D wear more ornamental armour then we’re accustomed to seeing, sharp and almost decorative in design, and possibly breakable, though I wouldn’t advise testing it!

However, these are Klingons, and while they don’t seem practical, you can be damn sure that they’re supposed to be used in combat even if they look like the way do in ST:D.

T’Khumva, - pictured above, - is wearing something a lot more decorative  then what the rest of his people are wearing. A higher collar, sharpened points, aggressive, bold lines in a gold alloy trim, black leathers being the main base point with the gold being the accent, decorated the collar and points of the spikes with what looks to be stones. It seems he’s even wearing a house crest on his abdomen, though that may still be a design choice to go with the chest and collar piece pattern.

Let’s take a look at the others in his ‘court’.

Their style is simpler, with lower collars, with drabber and less prominent colour and designs with no aggressive lines or defining markers of a Klingon house. Less decorative and more practical. I wouldn’t think these Klingons to be servants, but maybe they are, or maybe they’re lesser nobles from lesser houses, who knows! But there is a harsh difference between their armour styles and the way T’Khumva wears his.

They’re from royal houses with those serving under them considered of their house, so obviously they’re going to wear what, to us, would be overly fancy, formal clothes, but with much more practical use to keep you from, you know, dying?

The design and style of them, from their armour to their physical appearance, even to their spoken words, phrases, and language, they are different, but not quite different enough, to not be Klingon.

All of this points to the factor that the houses have been inbreeding within their own genetic lines over a possibly lengthy time, - ST:D happens a decade prior to TOS and the virus happened 113 years in the past, a decent time for gestation and passing of genetic material dependent on Klingon breeding and reproduction standards, - and have slowly pushed further and further out from what is commonly known as the standard Klingon. 

Who knows, maybe they’ve been doing this for centuries?

I understand that people are upset about the design change due to something they have always known being shifted so drastically, I get it, but consider what I said!

What we are seeing, the Klingon High Council and their houses, could quite literally be extremely inbred specimens born from attempts of keeping the blood line pure.

I’m totally open for comments, critique, and further speculation if anyone wants to add more to this or to argue this!

IwlIj jachjaj! Qapla’!

[razieltwelve]

Deliberation (Final Rose)

News of the battle that had taken place on the other side of the gateway - in anther galaxy - had been swiftly relayed to the Empire and the Alliance. Naturally, opinions on what to do next were divided.

“I say we conquer them all.” The Dia-Farron representative cackled evilly and rubbed his hands together in glee. “Based on the reports we’ve received, we’re clearly far more advanced than them on a technological basis. We can wipe out these Reaper things and move on from there.”

Empress Averia VII sighed. “We’re not going to be conquering anybody.” She paused. “Yet.” As crazy as it sounded, she wasn’t going to rule out anything at this point. “But you know standard Imperial policy when encountering new sentients, don’t you?”

“Yes, I do, Your Majesty.” The Dia-Farron huffed. “But we’d be doing them a favour. The files we’ve received indicate that they’re ruled by a bunch of indecisive fools. And their technology - that Element Zero of theirs is certainly useful and we’ll definitely be taking a closer look at it, but it seems to have stunted their technological development significantly. They use it for everything, and it gives them tunnel vision.”

“Not everyone can be as imaginative as a Dia-Farron,” Averia replied. She nodded at one of her other advisors, the Minister Without Portfolio. He was from the Line of Anna. “Your thoughts, Snow?”

Snow took a moment to consider his words. “Although I’m not endorsing invasion, we can certainly turn this to our advantage. In exchange for our help against the Reapers, I’m sure they’d be willing to make concessions. If our analysis of their technology is correct, their faster-than-light travel systems are considerably inferior to ours. Indeed, most of their large-scale travel seems to be conducted through the Mass Relays, limiting their travel to areas connected to the relay system. There are thus significant volumes of their galaxy that they cannot easily access…”

“And we’d be asking for these in exchange for our help?” Averia asked. Her lips curled up into a grin at the completely innocent look her cousin - many times removed - gave her. “Not a bad idea. We’d be able to secure territory without having to attack these sentients, and they wouldn’t feel particularly put out by it either.”

“I still say we should conquer them.”

“Oh, stop it.” Averia nodded at her other advisors. “I’d like to hear what each of you have to say.”

One by one, her advisors offered their opinions. They didn’t all agree, but she didn’t want or need them to. It was their job to present her with varying points of view, and it was her job to determine the best course of action for the Empire. She was certain that Weiss was in a similar meeting with her advisors amongst the Alliance.

“Jahne,” Averia said at last. “What do you think?”

The bearer of Ragnarok grinned toothily. “I think I’d rather be over there than here. These Reapers remind me of the Grimm. It’s got me itching for a fight.” She paused. “But I happen to agree with Snow. Our technology is advanced enough that even if the systems we’re given aren’t ideal, we’ll be able to terraforms worlds as necessary and mine asteroid belts and the like for further resources. However, you’ve seen the readings. Their galaxy lacks Dust, and their citizens lack Aura.”

There was a low murmur of unease from the people in the meeting chamber. Averia gestured for calm. They had never before encountered advanced life forms lacking in Aura other than the Grimm. Even cats and dogs had Aura, albeit usually much less than a person. It was a part of whom they were.

“I believe we can explain that,” the Dia-Farron said. “One of our scientific research teams went down to the surface of the planet the Reapers were attacking. It is Silent.”

“Are you certain?” Averia asked.

“Their data was clear. The planet was Silent. If all of their planets are Silent, then their lack of Aura is not surprising.”

Averia frowned and thought carefully over her advisor’s words. The source of Dust had been discovered during the Age of Heroes after a team led by Professor Dia and Diana Yun-Farron had uncovered an ancient ruin that led deep beneath Remnant’s surface. 

The planet was alive. Dust was nothing less than the crystallisation of the Planet’s Aura. It was why it stopped working when it was too far from the Planet. Expansion to other worlds had revealed that many of them were alive too, and all of them had possessed Dust. Silent planets were not alive in the same way. They had no ambient Aura and no Dust. It was exactly as the Cetra of old had said although no one had believed the ancient writings until then.

So far, they had yet to discover advanced lifeforms on planets that were Silent. That wasn’t to say something had to be born on a living planet to have Aura - many of the Empire’s citizens were born in space - but it appeared to be necessary to have descended from beings that were born on a living planet.

Of course, just because a planet was alive didn’t mean it could be spoken to although there had been several successful attempts over the years, always involving people with trace amounts of Cetran ancestry. Indeed, the only ones who could do it consistently were the Cetrans themselves although they were a rare sight outside of their systems. Averia smiled faintly. That had been lucky turn of events. Several thousand Cetran had survived on a lost stasis ship, which Remnant’s civilisation had discovered roughly one thousand years after they had begun to explore the galaxy.

They owed the Cetrans a great debt, for the Cetrans had themselves fled to Remnant before being all but wiped out there after arming the populace and teaching them many things. As such, the Cetrans were given systems of their own and left largely to their own devices as they sought to rebuild their shattered race. To date, they had kept to themselves with only small numbers of them venturing into Imperial space.

Still, Averia’s ancestors had learned how to terraform worlds and, more importantly, how to bring them to life. Remnant was a living world, and apart from the Dust it produced, it made… seeds was the best way to call them. They could be carried to another world and implanted there, to grow and eventually bring a world to life. Advances in understanding how seeds and a planet’s Aura worked had allowed Dust to be useable in space for centuries.

“Can we plant seeds on their worlds?” Averia asked.

“We plan to try once we know which worlds we can expect to hold for an extended period of time,” the Dia-Farron said.

“Good. I like Snow’s suggestion. I would like to pursue it, and I will get into contact with Weiss to see what the Alliance thinks.” Averia paused. “But for now, we wait. We’ve allowed ourselves to be seen. It won’t be long before one of the governments over there contacts us.”

X     X     X

A galaxy away…

Jane Shepard stared at the wall. Earth was gone. They’d lost Earth to the Reapers. This… She swallowed thickly. She would give anything for this to be a dream, but it was real. It was far, far too real. She was tugged back to the present by a message.

“Commander.” It was Miranda. “I… I have something you should see. It was forwarded to me by one of my contacts along the frontier.”

“What?” Jane growled. “What is it?”

Miranda’s voice was… hesitant over the comm channel. “Just… look.”

A file was uploaded onto her omnitool, and Jane watched it with growing amazement. It was a colony along the frontier under siege by the Reapers, most likely thanks to the Mass Relay in that system. And then… out of nowhere, another force had attacked the Reapers, obliterating the ones in orbit around the planet while landing additional forces to devastate the ones on the surface.

The most incredible thing was that it had only taken two ships. Two ships to wipe out dozens of Reaper vessels, and they hadn’t taken any noticeable damage while doing so. That was insane.

“Is this real?” Jane asked.

“I think so,” Miranda said. “According to my contact, the ships have maintained orbit over the planet, and their forces have wiped out the Reaper forces on the surface.”

“They’re huge…” Jane’s brows furrowed. “They’re more than double the size of the Reapers. They don’t look familiar at all. Who are they?”

“We don’t know.” Miranda paused. “But there’s more. They are broadcasting a message on several frequencies. It’s, well… it says ‘take me to your leader’.”

“An invitation, huh?” Jane took a deep breath. “I don’t know who they are, but if this is real and they have the firepower to take out the Reapers, we need to meet them.”

[hermanwatts]

Sensor Sweep: Whisper Network, Bradbury, James Bond, Isle of Dread

H. P. Lovecraft (DMR Books): The first thing to keep in mind is that this cache represents one of the great epistolary friendships in the history of letters. The two never met in person, but the Mutual Admiration Society CAS and HPL formed between them was forged of eldritch steel. Both considered the other the Greatest Living Weird Fiction Author. It is obvious in every letter they wrote and confirmed by comments they sent to other correspondents.

  Comic Books (Bleeding Fool): Two weeks ago, we published the second part in our ongoing series of articles investigating the secret “Whisper Network” – a secret group of (mostly) women that’s been allegedly colluding to torment comic book pros and publicly harass creators they disagree with. Within that exposé, a major story was uncovered that should have rocked the comic book industry when it first happened, but was buried or “memory holed” by comic industry press at the time, with sites like Bleeding Fool erasing it after publishing it and Comics Beat, IGN, Newsarama and all others ignoring it entirely.

Cinema (Bounding Into Comics): In a new video interview J.J. Abrams declared that his film production company Bad Robot will make hiring based on looks a top priority. Speaking with Time Magazine about the film industry Abrams discussed what he wants the industry to look like in the future. He then made it clear that Bad Robot will be focused on people’s outward appearance when it comes to hiring.

Robert E. Howard (John C. Wright): As previously announced, Jeffro Johnson, author of Appendix N, Zaklog the Great, Nate the Greater, and your truly gather electronically to talk about Robert E. Howard’s verse….

Ray Bradbury (Pulpfest): Ray Douglas Bradbury was born on August 22, 1920, in Waukegan, Illinois. From an early age, he was a voracious reader and consumer of popular culture — movies, pulp magazines, radio programming, newspaper comic strips, circuses, magic, and more. He was enamored with the Buck Rogers newspaper strip, the stories of L. Frank Baum, Edgar Rice Burroughs, and more. By age twelve, he wanted to write.

James Bond (25 Years Later): Raise your martini glasses! We are only a few months away from (hopefully) another fantastic James Bond adventure (er, at least, we think so. It’s already been delayed once by a global pandemic that is starting to feel like something a diabolical Bond villain would think up). No Time To Die, the 25th official James Bond release, directed by Cary Joji Fukunaga (Beasts of No Nation), stars Daniel Craig for the fifth, and likely final, time as superspy James Bond ending what has been a sterling era for the rugged 52-year-old.

Fiction (Benespen): This is another expedition into the past of popular literature. Abraham Merritt, whose byline is nearly always A. Merritt, was a popular author who wasn’t even best known in his own time for his fiction. Rather, he was a celebrity journalist, making enough money to travel widely and pursue arcane hobbies.  The Moon Pool [Amazon link] is the work I usually see cited as typical of Merritt’s work, and it is listed in Gary Gygax’s “Appendix N” as an influence on Dungeons and Dragons. Let’s dive into the Moon Pool and see what happens!

Science Fiction (Starship Cat): This novel is pretty much a direct follow-in to Citadel, and continues to be mostly Dana’s story, with occasional appearances by Butch and some cameos by Vernon Tyler. Dana’s story is pretty much an enactment of the proverbial Chinese curse “May you come to the attention of those in high places.” Her heroism at the end of the last book has made the Powers That Be decide that she’s leadership material — and send her to the new station, to command a squadron from the various Latin American countries.

H. P. Lovecraft (Tentaculii): I’ve encountered an interesting item which perhaps throws a small sidelight on the use of the telephone in Lovecraft’s “The Statement of Randolph Carter” (1919). You’ll recall that a telephone is taken on the descent… The telephone might sound like an unlikely thing to take down below. But wired long-distance field telephones were a known ‘thing’ at that time, not least because of their use in the war.

Conventions (Dragoncon): Part two of our three-part interview series where past Dragon Award recipients talk about their award-winning novels and their Dragon Awards experience. In part one of our three-part Dragon Awards interview series, our award-winning authors talked about their background, what motivates them to write, and about their novels that captured Dragon Awards audiences everywhere.

Cinema (0themastercylinder): William Smith. He was born in 1933 in rural Columbia, Missouri on a cattle ranch. That background served him very well during the many Westerns he was to appear in later. The first big surprise I got in examining his background was how early his film career started. He appeared as a child actor in 1942’s “The Ghost of Frankenstein” as the boy who befriends the Monster portrayed by Lon Chaney Jr.

D&D (Paint Monk): wo years ago, I picked up Goodman Games’ Original Adventures Reincarnated #1, where I re-lived the fun of TSR’s original D&D modules “In Search of the Unknown” and “The Keep on the Borderlands”. This month, I finally picked up OAR #2 – The Isle of Dread, and I’d like to share just how much I enjoyed this book and the work the fine folks over at Goodman put into making it a success.

Fiction (Dark Herald): Been a while since we’ve seen a new Dresden Files book and we will be getting two this year. So at least 2020 isn’t a total write off. Butcher’s last addition to this series was in 2014. He had been rather productive up until this time. Usually producing one or two books a year. I’m not sure why there was a prolonged interrupt, possibly it was his divorce.

Beer (Trinkelbonker): Got these as a delayed birthday gift the other day, six cans of Ace Of Aces American Lager with a rather nice (and collectable, if you ask me) motif. The aircraft you see is an American Lockheed P-38 Lightning and the pilot that flew it was Richard Ira Bong, the first child of nine of Carl Bång, an immigrant from Sweden and Dora Bryce, who was an American by Scots-English descent. Richard, nicknamed Dick by his friends, shot down over 40 Japanese aircraft in the Pacific Theater during WWII and became one of the most decorated pilots of the war.

Game Review (Black Gate): This is the second article in my “explanation” of Conan 2d20. Last time I focused on 2d20’s core mechanic and on this game’s design philosophy insofar as it is an emulation of the “physics” and flavor of Robert E. Howard’s Conan fiction. This one will detail more aspects of gameplay, particularly player character components and action scenes. Last article, I maintained that Conan 2d20 characters begin as powerful in mechanical ability (unless the alternative Shadows of the Past character generation is used).

Cinema (Irish Times): because these things only happen in the greatest superhero movie ever made: Flash Gordon. The 1980 camp classic, which has been restored in 4K to mark its 40th anniversary, has a history of happy accidents following its hero’s first appearance in a comic strip in 1934. Buck Rogers, another intergalactic hero, had already spawned novelisations and toys when King Features Syndicate – a subsidiary of the Hearst newspaper empire – approached Edgar Rice Burroughs with a plan to adapt John Carter into a comic strip.

Small Press (Tentaculii): New on Archive.org…Howard Collector #5, Summer 1964.  Howard Collector #6, Spring 1965. With the poem “Who is Grandpa Theobold?”, from a letter. This would count as another early use of ‘Lovecraft as character’, albeit not in fiction. I wonder what the likely year on this poem is?

Cinema & T.V. (Dark Worlds Quarterly): Heroic fantasy films and television changed after 1982. The release of Dino DeLaurentis’ Conan the Barbarian sent Fantasy films in a new direction. Movies had to have a mix of violence, sex and flash that previous movies seemed to lack. Whether you like or hate these films is a matter of opinion. There were bright spots of Fantasy filmmaking among the direct-to-video duds like the Brian Froud-Jim Henson films, Legend by Ridley Scott, and Ron Howard’s The Lord of the Rings known as Willow.

Book Review (Benespen): War Demons [Silver Empire affiliate link] is the veteran’s take on supernatural horror. Sometimes we casually refer to the men who come back from war suffering from PTSD and survivor’s guilt as demon-haunted; but for Michael Alexander it is anything but a metaphor. We now come to the third book covering similar territory I have read recently. I don’t often end up reading lots of similar books together in succession, so I can compare and contrast these.

Science Fiction (Future War Stories): Packed in seemingly every military science fiction work are futuristic firearms and some, like the Colonial Marines M41A1 Pulse Rifle has become an icon of sci-fi weaponry…then there are others that never get their day in the limelight. One of those military sci-fi weapons is the United States standard issue endo/exo assault rifle of the 2060’s: the M590. Featured in the legendary 1990’s FOX one-season TV show Space: Above and Beyond.

Science Fiction (Rough Edges): Robert E. Vardeman has been writing top-notch science fiction for about forty years now, and that’s almost how long I’ve known him. His latest novel, THE DUST OF STARS, is the first book in a new series called ENGINEERING INFINITY, and it’s everything I love about science fiction. First, it has big ideas. And I mean E.E. “Doc” Smith big: An ancient, long-disappeared alien race scattered planet-sized machines throughout the galaxy.

Pulp Fiction (DMR Books): Merritt outlived the CAS-HPL correspondence of 1922-1937, though not by much. In the CAS-HPL letters, one sees Klarkash-Ton belatedly discovering Merritt–and HPL belatedly discovering The Metal Monster. Throughout the course of the correspondence, Merritt was the most successful exemplar of the weird fiction that CAS and HPL were themselves creating. While they did not always agree with the directions he took in his fiction, there was no denying that Merritt dominated the market for pulp fantasy.

Tolkien (Sacnoth’s Scriptorium): So, for years I’ve been convinced that the old story about the Tolkien Estate having gone after TSR for their use of hobbits, ents, balrogs et al in early printings of D&D was wrong and that it was actually Saul Zaentz’s group, Tolkien Enterprises (the movie merchandising people) who’d issued that cease-and-desist back in 1976. But while I’ve able to build up a probable case I’ve been lacking direct proof. Now Gygax has provided it.

Sensor Sweep: Whisper Network, Bradbury, James Bond, Isle of Dread published first on https://sixchexus.weebly.com/

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Divorce Lawyer Draper Utah

Speak to an experienced Draper Utah divorce lawyer if you need sound legal advice on divorce. We can help you with temporary orders, child support, child custody, alimony, property division, mediation, negotiations, real estate, and much much more. Divorce law has come a long way since the time the first settlors setup their colonies in the United States.

On May 3, 1930, a large advertisement for Robert Z. Leonard’s film The Divorcee asked the readers of the Washington Post, “Has Love a Chance in Today’s Hot Pursuit of Pleasure?” Loosely based on Ursula Parrott’s 1929 novel Ex-Wife, the film starred Norma Shearer, who won an Oscar for her portrayal of the title character. From the opening scene in which Jerry, played by Shearer, boldly insists that she and Ted (Chester Morris) get married and “make a go of it” as equals, the filmmakers signaled that Shearer’s character was a quintessential “new woman,” committed to a form of female equality and independence defined by male standards. Jerry’s determination on this point is so strong, in fact, that upon discovering Ted’s affair with another woman three years into their marriage, she promptly retaliates by having an extramarital sexual encounter of her own. Ted, after learning of her infidelity, demands a divorce. Jerry plainly has overestimated the extent of her equality—a sentiment echoed in the advertisement when it teased: “Her sin was no greater than his—but she was a woman!”

Once again single, Jerry vows to enjoy her freedom and to keep her bed open to all men except for her ex-husband. She quickly, however, becomes dissatisfied and physically drained by her new life of sexual adventure. Escape presents itself in the form of a married friend named Paul (Conrad Nagel), who proposes to divorce his wife Dorothy (Judith Wood) so that he and Jerry can begin a new life together. Indeed, Dorothy is Jerry’s counterpoint throughout the film. Whereas Jerry is beautiful, Dorothy has been tragically disfigured in a car accident on the night of Jerry and Ted’s engagement. Jerry and Ted married for love, but Paul, who was heavily intoxicated when the accident occurred, married Dorothy only out of guilt. While Jerry accedes to Ted’s insistence of a divorce, Dorothy refuses to concede marital defeat and will not give Paul the divorce he so desperately desires. Comparing herself to Dorothy, Jerry realizes the many ways that she has wronged her own union with Ted. Jerry thus arrives, as one reviewer explained, at “the realization that her own marriage has been a failure because she has not had the same determination [as Dorothy] to see it through.” She resolves to find Ted, and the two have an emotional reunion in which they promise to make their new marriage a success.

By the conclusion of The Divorcée, Jerry—and by extension, the audience—have learned several lessons. First, Jerry’s desire for marital equality is foolish and unrealistic. The film does not criticize a sex-based double standard; rather, its message is that in trying to emulate men, women can lose sight of what is truly important: love and marriage. The pitiful Dorothy is the true female center of the film—she is not beautiful, but she appreciates the value of being married and is willing to fight for Paul. Moreover, the film says, sexual freedom does not ensure happiness, especially for women. Prior to their mutual transgressions, Jerry and Ted plainly enjoy a fulfilling sexual relationship. Jerry’s life as a wanton divorcée, however, is unsatisfying, and only a chance encounter with Paul prevents her from becoming a hardened seductress. Finally, while divorce is sometimes a necessity, it is also frequently the result of easily avoided misunderstandings. Only in reunification—a theme that understandably became a popular Hollywood ending—can Jerry and Ted rediscover their former happiness and lead constructive lives.

The Divorcée quickly became one of the “stand-out hits of the early summer season” of 1930, and popular demand extended its run throughout the nation. The media’s descriptions of the film—press coverage alternately described it as “a chapter out of modern life,” “a Metro-Goldwyn-Mayer production dealing with a great social problem,” and “the most sophisticated treatment of the question of divorce”—highlighted its varied appeal to audiences. By 1930 divorce had indeed become a reality of everyday American life. At the same time, however, many Americans were deeply anxious about what the escalating divorce rate meant for the family, women, and the very future of the nation. Such fears were fanned by an emergent group of experts who spent the first several decades of the twentieth century identifying a “crisis” in American marriage. These self-appointed experts, some from within the academy and some with little or no formal training in sociology or related fields, came from different parts of the political and ideological spectrum. They agreed, however, that marriage (particularly for the white middle class) was in a period of crucial transition and that married couples could not handle this transition effectively on their own. The general belief that marriage was in trouble was hardly new. Social critics and clergyman, in fact, had been decrying a “marriage problem” for most of the nation’s history. But these early critics had focused their efforts on convincing the American public of the indissolubility of the marital union and, if this former effort failed, of the need for uniform divorce laws in order to prevent most divorces. By the 1920s, however, this debate had grown increasingly stale and the arguments ineffective. The ostracism that had once accompanied the decision to divorce had subsided, and the voices of experts began to supplement, and in many cases replace, those of religious authorities in the national conversation about marriage in the United States.

As the nineteenth-century understanding of marriage as a duty faded, experts worked to convince Americans to take an active interest in the health of their marriages. They focused much of their attention on women, the traditional guardians of the home and the individuals deemed primarily responsible for the continuing changes in family life. Experts believed that if marriage was going to be a “companionate” venture—a relationship based on love and satisfying sexual relations—divorce was an important safety valve for husbands and wives who were trapped in loveless unions. They hoped, however, that by studying marriage in an objective manner, they could develop strategies that would slow the rising divorce rate and, more important, improve the general quality of American marriages. To this end, experts launched research studies intended to quantify marital success and taught marriage courses at universities. Some even began to experiment with a European technique known as “marriage counseling,” anticipating that they could prevent both ill-advised unions and unnecessary marital breakups. These efforts, in turn, laid the groundwork for a new understanding of what it meant to be married in the United States.

The nineteenth-century idealization of married, romantic love was a key ideological origin of this transition. Stereotypes of Victorian prudery aside, many American men and women—especially those from more privileged economic backgrounds—clearly expected to have intimate, loving relationships with their chosen mates. During courtship, they exchanged impassioned letters and expressed hopes that their fervent feelings would not subside after marriage. Once married, they expected to place their obligations to one another and to their growing families above those to their extended families and their civic responsibilities. Nineteenth-century Americans, therefore, gradually began to view marriage as a central life experience from which they could derive happiness and forge satisfying personal bonds. This ideal, of course, was often difficult to achieve. The Victorian belief in the innate differences between men and women, in particular, impeded the full realization of marital intimacy and romance. Many husbands and wives, in turn, struggled to share common experiences and interests with their spouses.

Nineteenth-century marriage advisers (primarily ministers and physicians) nevertheless regarded this new emphasis on love with a sense of trepidation. One root of their concern was the fact that many nineteenth-century Americans believed love to be an uncontrollable emotion. While they considered it to be a prerequisite for marriage, they did not necessarily believe that all love was eternal. If marital love was lost, no prescribed action could recapture the feeling. Critics, therefore, tried to inject a more practical view of marriage into discussions of the institution. They argued that love was a choice and that young married couples could take concrete steps to ensure that their unions remained happy. In print, advisers reminded their readers that if these efforts failed, their marriage vows remained binding. It was desirable, in other words, to be content—rather than miserable— while fulfilling ones’ duties. When nineteenth-century marriage advisers pointedly rejected the possibility of divorce, however, they betrayed a fear that not all Americans understood the sanctity of their marriage vows. This concern was not necessarily misplaced. Divorce, in a very limited form, had been available in the United States as early as the colonial era and spread in the years following the American Revolution. No sooner, it seemed, did Americans create a rationale for dissolving the bonds of empire than they set about creating rules for dissolving the bonds of matrimony. While the two acts—dissolution of empire and dissolution of marriage— existed on vastly different scales, the language used by the patriots and lawmakers to justify both was strikingly similar. Furthermore, the legitimization of divorce beyond the very strict rules of English common law helped the American legal system to sever its dependence on the English model. The theoretical legitimization of divorce as a means of ending a “tyrannical” (or sexually promiscuous) union, in other words, was ingrained in a distinctly American legal system from its onset.

The mere legality of divorce, however, did not ensure that divorce was widely available or publicly condoned after the nation’s founding. Until well into the twentieth century, couples could not divorce legally by mutual consent. While divorce laws varied widely from state to state, “fault” divorce always required that one spouse prove that the other was guilty of adultery, desertion, or some other serious failing. Until the mid-nineteenth century, an aggrieved spouse in many states had to petition his or her state legislature in the hopes of obtaining a divorce decree. Only as the number of petitions proliferated did legislators begin to move divorce cases into the courts.

The nation’s slowly rising divorce rate went largely unnoticed until the 1850s, when it became a rallying point for social critics who saw the rate as irrefutable evidence of a creeping moral decay in American life. In the 1870s and 1880s, many state legislatures made their divorce laws more stringent in (unsuccessful) attempts to decrease the number of couples eligible for divorce. Their efforts became even more urgent once a Department of Labor study in the late 1880s confirmed that the United States led the world in divorce. Interestingly, the conservative opposition to divorce rarely called for its prohibition. The potential for chaos if couples resorted to extralegal means to end their marital unions, paired with the laws’ origins in the Revolution, ensured that calls for an outright ban were muted. Plus, conservatives did not have a ready alternative to divorce for unions in which spouses flouted moral convention by committing adultery or violently assaulting their partners. The common trope of the victimized wife seeking a divorce as a last resort was too powerful an image for divorce conservatives to assail. Instead, they fought unsuccessfully for the passage of a federal divorce law that would supersede the lax laws of so-called divorce havens such as Indiana, South Dakota, and, later, Nevada.

Some men and women in the nineteenth century did support relaxed divorce laws, but their views could hardly be classified as prodivorce. Several women’s rights advocates, notably Elizabeth Cady Stanton, were in favor of divorce because it gave women a modicum of control in the face of an otherwise patriarchal institution. This stance proved divisive, however, as many other activists believed that divorce hurt women by leaving them without financial support. Other divorce supporters asserted that the availability of divorce allowed for better marriages. They pleaded in its favor, therefore, not because the availability of divorce subverted existing marriage norms, but rather because its accessibility augmented the value of marriage to American society. Their primary argument was that since the marital union was perfectible, any unions that failed to reach this high standard should be dissolved, leaving the divorced couple to pursue perfection with better-suited mates. This camp held that, at the present time, divorce was necessary but envisioned a future in which it could be eradicated. The exact details of this plan were vague, although they generally involved making it more difficult to get married. One commentator, for instance, felt that “the greatest social evil in our country is the marrying habit.”

What was truly problematic about the “marrying habit” in the minds of many Americans was not only its relationship to the rising incidence of divorce but also the perception that the wrong types of people were getting married and having children. Specifically, a significant number of the nation’s most educated women were remaining single because (among other reasons) they did not want to give up their careers—as would be expected of them—after marriage. The fight for women’s rights, as well, threatened to separate women from their traditional duties as wives and mothers. Furthermore, the birth rate among native-born, white citizens had been in a steady decline since the early nineteenth century, whereas the immigrant birth rate (considered far less desirable at the time) was quite high. President Theodore Roosevelt undoubtedly did not assuage such concerns when he popularized the idea that given present trends, native-born, white U.S. citizens were in danger of committing “race suicide.” Such rhetoric, when paired with anxieties about the divorce rate, contributed to a full-fledged sense of crisis in regard to the state of family life in the United States. Ironically, only a small percentage of Americans were getting divorced in the late nineteenth and early twentieth centuries. According to some historians there were fewer than two divorces for every thousand marriages in 1870. Certainly, many other couples created their own extralegal marital “exits,” prompted either by relationship woes or other necessity. The evidence nevertheless suggests that most Americans’ motivations for divorcing were hardly frivolous. Court records, for example, indicate that husbands and wives only sought to end their unions in extreme circumstances, such as when an offending spouse had long since disappeared, failed to provide basic necessities, or had committed adultery.

While many divorcing men and women also knew what the courts needed to hear in order to decide in their favor and may well have tailored their cases to fit such expectations, the low divorce rate nevertheless points to the serious personal and social consequences that accompanied the decision to divorce in Victorian America. At the time, after all, “evil” was the word most frequently paired with “divorce” in the popular press and in religious and legal circles. Most popular fiction, in turn, portrayed divorce as shameful and emphasized its harmful effects on individuals and society at large. The deleterious consequences of divorce were particularly evident for women. For wives without independent financial means, the infrequency of alimony allocations meant that divorce could lead to reduced circumstances or even destitution. Plus, divorce clearly represented a grave failure for any woman who embraced a Victorian identity as the moral guardian of the home, especially if her husband had succumbed to temptation and committed adultery. Many Americans believed divorced men and women to be morally suspect, and the divorced faced an uncertain social future based on their decision to end a marriage, no matter what had motivated them to do so.

The contemporary meaning of marriage is no easier to pin down and ascertain if we look at it from a societal, rather than an individual or legal, perspective. It is true that there are more public justifications for marriage from society, but marriage also has multiple potential meanings to the society that constructs and contains it. In fact, the express, explicit reasons for marriage from society’s perspective have not changed all that much over time. Some are mundane, such as the need for a certain formal record keeping and for the assignment of responsibilities and rights among persons (e.g., to facilitate property transfers at death or identify persons responsible for payment of household debts).

There are some benefits for society expressed through its interest in marriage in regard to public health. The application for a marriage license can also be the occasion for mandatory health screening or counseling on genetics. It can be used for social engineering purposes, such as to supply information on the importance of marriage or to educate couples about the purported negative impact on their children, should they have any, from any future decision to separate and divorce.

The American marital entity has an interesting lineage as a legal category. It is directly tied to one religious set of concepts and beliefs. Looking back into its legal history, we see that marriage was not created de novo as an American institution. As a legal relationship, its content and terms were drawn from British institutions that had evolved rules exemplifying rigid relationships.

In England there was a direct historic connection between the state religion and the legal treatment of intimate relationships. Marriage was a sacrament administered by the church and subject to its rules. Under the common-law system in effect in England until fairly recently (as legal institutions go), issues concerning the creation and dissolution of marriage and other aspects of family formation were left to the ecclesiastical courts. It was not until the passage of the Matrimonial Causes Act of 1857 that jurisdiction over marriage and divorce was transferred to civil courts. Consistent with the precepts of their religious approach, these courts viewed marriage as a lifelong commitment. An annulment or, failing that, desertion, was virtually the only route out of an unhappy union. The Church of England’s ecclesiastical courts could grant a divorce “from bed and board,” which allowed couples to live apart but not remarry. Divorce was theoretically available, but only through a special act of Parliament, and between 1800 and 1836, an average of three such bills of divorce were granted each year. Generally, access to divorce was limited until the late twentieth century. This view of the presumed permanence of marriage was also evident in colonial America, where divorce could be granted by a secular judiciary, but this rarely happened. In fact, prior to the mid-twentieth century in the United States, judicial divorce although increasingly more common over time than in the colonial period, was available only for “cause.” “Cause” could include adultery (in New York this was the only cause that justified divorce in 1787), as well as “impotence, adultery, intolerable severity, three years’ willful desertion, and long absence with presumption of death” (Vermont in 1798) and “gross misbehavior and wickedness in either of the parties, repugnant to and in violation of the marriage covenant”. Today in Utah you can seek a divorce on various grounds including adultery, impotence and desertion. Speak to an experienced Draper Utah divorce lawyer to know the various under which you can seek a divorce from your spouse.

An “innocent” spouse could ask the state to sever the marital tie when she or he was successful in demonstrating the “fault” of her or his mate. Fault grounds indicated there had been some egregious offense to the very marital union. States such as New York at that time permitted divorce only for very serious offenses that were considered to undermine the nature of the marital connection, such as adultery. Other states considered the amorphous category of “cruelty” to be a sufficient basis for dissolution. Colonial divorce laws varied considerably by region, with the northeastern states tending to be slightly more liberal than their southern neighbors. In the United States there was no established state religion, but the relationship between religious perceptions and beliefs about marriage and the construction of state principles regarding that connection were still evident, if attenuated. The individual states incorporated common-law concepts and definitions from the religiously shaped English rules into their laws governing family. American judges tracked the religious rhetoric of their English counterparts when considering issues involving the family. Divine laws governed family relationships, setting out the natural order for the individuals who entered them. The content of the marital relationship was also divinely structured. In what has become one of the most famous concurrences in the American legal tradition, in the 1873 Supreme Court case of Bradwell v. Illinois, Justice Bradley made what is still considered the classic statement regarding the common-law perception of the divinely determined distinct roles of husbands and wives. The organization of the traditional family in the British and American legal tradition was also patriarchal, with the husband—“head” of the family—owed obedience and domestic and sexual services from his wife. In return, he was obligated to support her and their children. The husband’s role conferred rights as well as responsibilities, including the right to punish family members. Because he bore responsibility for their actions, a husband had the right to reasonably chastise both wife and children. His support obligations also gave him a corresponding right to the earnings of his wife and children, and to control over their property.

Further, the view of marriage expressed by Justice Bradley and the divinely ordained respective positions of the spouses also limited the expectations and opportunities for married women in the larger society. The marital family’s hierarchically organized and well-defined gender roles placed the spouses in different spheres. Women, excluded from many of the public aspects of life, were perceived as appropriately dependent. As the Bradley concurrence in Bradwell expressed, their true calling was considered to be the home and family.

This ordering of domestic life was intuitive—a response to the natural dependency of women. Common law imposed disabilities on women that supported this ordering of the world. Married women were not able to own property or make contracts. In some instances they could not even be held responsible for their own torts or crimes. Their husbands, perceived as controlling them absolutely, were charged instead.

The common law expressed a structure in which the distinct specializations of the spouses complemented each other: the wage earner and the housewife; the protector and the protected; the independent and the dependent. Each spouse needed his or her complement in order to attain and maintain a whole, complete family entity, one that provided for all its members’ needs. This specialization, bringing together the head and the heart of the family in the form of husband and wife, allowed the marital family to function in a self-sufficient manner, providing both economic and domestic resources to the unit.

This unequal, if complementary, positioning of men and women within the common-law family became problematic for women when divorce became more prevalent under no-fault statutes. These statutes changed a fundamental aspect of marriage. Marriage in its common-law manifestation was considered a lifelong commitment, but no-fault divorces ushered in a revolution in our way of thinking about the permanence of the relationship of marriage. No-fault meant much easier access to divorce. In many states divorce became available on unilateral demand of one spouse even over the objection of the other that the relationship could be salvaged. Men who wanted to be free of their “faultless” wives (as determined under the previous fault divorce statutes) no longer had to bargain with those wives and buy their complicity in the divorce process through concession of property or other economic incentives.

Initiated by both wives and husbands, no-fault opened the divorce floodgate and exposed the economic vulnerability of the common-law assignment of ownership of all wages and property to the wage earner. Wives were not considered entitled to a share of property accumulated during the marriage, since they did not earn the money to buy it and typically title was in the husband’s name. As a result, women found themselves and their children destitute at divorce.

The discouragement of married women from participation in the workplace and investment in a career also had more general negative economic implications. After a divorce, women found that they had to work in the marketplace as well as in the home, yet the old vision of marriage had discouraged them from honing the skills they needed to do so. All this has changed, of course. The no-fault revolution coincided with another revolution in the way we understand the world—the gender equality movement, which ushered in massive changes in all phases of life, including marriage.

No Fault Divorce In Draper Utah

The move to no-fault divorce might have altered our view of marriage, but the gender equality revolution altered the way women perceive their societal, nonfamilial roles. It seems hard to believe that it was less than a century ago that women won important political and civil rights, such as the vote, which was achieved in 1920 with the passage of the Nineteenth Amendment. Even after women achieved the right to vote, they were still excluded from service on juries. Although the first women were summoned to jury service in 1870, as a rule, women were systematically denied or exempted from jury service for the next century, usually for reasons that were considered “benign” and “practical”. It was not until 1994, in J.E.B. v. T.B., that the Supreme Court declared that peremptory challenges based on sex violate the equal protection clause of the Fourteenth Amendment. Until recently, the common-law rule was that a woman’s domicile (essentially her legal place of residence) was always the same as her husband’s. This caused difficulty for many married women, as a person’s domicile is used in determining numerous legal entitlements, categories, and qualifications. Because a woman’s legal identity had traditionally been merged with that of her husband, her domicile was assigned based on her husband’s place of residence, and a woman had no control over this determination. As divorce laws changed and women’s destinies were less tied to the institution of marriage, the inappropriateness of this situation became more obvious. The common-law rule began to change in the 1970s, and the American Law Institute finally ratified this change in 1988.

Prenuptial Agreements

Prenuptial agreements have come to enjoy a presumption of validity, as long as they were made voluntarily and with full disclosure of financial information. Some courts still maintain the additional requirement that an agreement be substantively “fair” to both parties. Even while they do so, recognition is typically given to the changes in gender expectations. If you are planning a divorce and have a prenuptial agreement in place, consult with an experienced Draper Utah divorce law. The lawyer will review your prenuptial agreement and advise you on whether the agreement will be held valid by the court.

Child Custody And Child Support

The past few decades have witnessed a dramatic increase in the divorce rate in the United States and elsewhere, a phenomenon that reflects and influences changing social attitudes toward marriage and the family. When offspring are involved, the divorce process becomes further complicated by considerations over custody and visitation rights. And when the parents themselves cannot resolve these issues, the courts are faced with the difficult task of making a custody decision.

First, despite important differences in the amount of time they spend with their infants and young children, both fathers and mothers are significant figures in the infant’s world from a very early age. By the end of the first year, infants recognize both parents and prefer them to unfamiliar adults. By this time and increasingly during the second year, infants respond differently to each parent, reflecting the development of a rudimentary appreciation of each parent’s unique role in their world. The research indicates that there are more similarities than differences in infant responsiveness to fathers and mothers: They protest separation from either parent, delight in being reunited with them, and play comfortably in the presence of either father or mother. By all accounts, it is apparent that infants develop emotionally salient attachment relationships with each parent by the end of the first year. In short, both mother and father are “psychological parents” to their young infants, even when the father does not assume major caregiving responsibilities. There is every reason to assume that the psychological salience of each parent persists as the child grows older.

Second, even though both parents are important figures in the infant’s world, mothers and fathers differ significantly in their caretaking roles and responsibilities in most homes. Mothers typically assume basic caretaking tasks such as feeding, cleaning, dressing, soothing of distress, and preventative protection from harm. When they play with their babies, they use low-key verbally-oriented and toy-mediated games. In contrast, fathers are typically much less involved in routine caretaking tasks. Rather, they spend a greater proportion of their time engaged in play–specifically, a vigorous rough-and-tumble, physically stimulating kind of play.

The adjudication of child custody disputes raises important and interesting questions, among them the role of fathers as caregivers. For many years, courts have assumed a preference for the mother, contending that a mother’s nurturance and love constitute irreplaceable components of early socio-personality development, particularly during the “tender years.” More recently, however, judges have been using a more egalitarian “best interests of the child” guideline, in which mother and father can compete on a more equal footing for the custody of offspring. Yet this new guideline is a mixed blessing. Although it opens the door to fathers, its conceptual ambiguity permits a wider latitude of subjective judgment on the part of judges, which often results in an implicit maternal preference. The question of what are the child’s “best interests,” and how these may be served by a custody decision, is crucial if this decision-rule is to play a useful role in the custody adjudication process.

In hearing a custody dispute, a judge is faced with an unusual and difficult decision. Most legal disputes focus on the documentation of facts relevant to a case; child custody decisions entail more subjective judgments of parental caregiving competence. Furthermore, custody disputes cannot be resolved on the basis of judicial precedent. Rather, they must be addressed on a case-by-case basis, taking into consideration the unique history and circumstances of the family in question. The judge’s decision-making is further complicated by the predictive nature of the custody award. That is, he or she must consider the long-term ramifications of the decision, including the future economic and living conditions of each parent, the developmental needs of the child, and the potential availability of extrafamilial support systems. Finally, custody decisions rely heavily upon a judge’s discretionary powers in applying legislative guidelines to the particular family in question.

To be sure, most parents who divorce can agree on custody of the children without seeking judicial help. Despite the dramatic increase in the rate of divorce over the past two decades and the broadening of legislative guidelines to put parents on a more equal footing in seeking custody, fewer than 15% of the couples who divorce will proceed with a fully contested custody battle. And, of course, the overwhelming majority of custody awards are to the mother: Fewer than 10% of divorce decrees award children to the father. In many cases, fathers who receive custody do so with the consent of the noncustodial mother.

But although the proportion of disputed custody cases seems to be stable, the absolute number of disputes is increasing sharply due to the rising divorce rate. Coupled with the gradual changes in parental roles evoked, in part, by the increasing number of working mothers, it is reasonable to expect that the number of divorce petitions in which both parents want custody will continue to increase in the years to come. Therefore, it is important to clarify the guidelines by which judges resolve these disputes. The legislative guideline that currently prevails in most states–that is, awarding custody according to the “best interests of the child”–is historically the least explicit. Interestingly, English legal tradition long asserted a paternal preference, reflecting a time in which offspring were regarded as heirs to privilege and wealth and as parental property. Thus the father was viewed as the primary guardian of his legitimate children and, in the event of a dissolution of the marital bond, he assumed exclusive custodial rights. With the changes in social structure wrought by the Industrial Revolution and changes in social philosophy provoked by writers like Locke and Rousseau, this common law assumption gradually broke down. Instead, by the 19th century, both English and American law put the wife on an equal footing with her husband: Both were to receive equal consideration in a custody decision. In practice, however, this usually resulted in an implicit maternal preference, because custody decisions were based on evaluations of parental fitness and wives, as the customary initiators of divorce action, were in a better position to argue against their husbands. Concurrently, an explicit maternal preference when the children were in their “tender years” (generally speaking, under the age of seven) helped to consolidate this implicit bias for the mother in the courts. In short, changing judicial guidelines were reflecting changing social values. Childhood was increasingly viewed as a period of nurturance and education, and mothers typically assumed a major role for both. Early in the 20th century the maternal presumption became consolidated in judicial decision-making, sometimes by explicit statute but more often in the form of case law.

Jurists assumed that, except in instances when the mother was clearly unfit, it was consistently best for the child to benefit from the love and nurturance provided by the mother. They were supported in this assumption by contemporary psychoanalytic theory, which stressed the unique role of a mother’s love to early psychological development.

More recently, however, the maternal presumption has been increasingly questioned in favor of a more egalitarian guideline. Much of the impetus for this reconsideration has come from social critics who regard the maternal preference as inherently sexist and a perpetuation of traditional gender roles. The dramatic rise in the number of working mothers in recent years and the concurrent increase in demand for infant and preschool childcare services are particularly salient manifestations of the changing American family. Thus the traditional family system in which mother is a fulltime caregiver is no longer the norm, and this has undermined the rationale for an explicit preference for mother in custody disputes. In addition, of course, there are a number of instances in which an explicit maternal presumption is clearly inappropriate, such as when the father or another person has assumed sole caregiving responsibilities, or when the mother is abusive or neglectful. Finally, many critics contend that the maternal presumption focused attention on judicial evaluations of parental fitness rather than on child-centered concerns. Thus the purpose of the best interests guideline is to encourage an appraisal of the custody dispute in light of the contributions (actual and potential) of each parent to the child’s present and future needs.

Problems with the Best Interests Of The Child Guideline

This legislative intent may be significantly undermined, however, by the ambiguity concerning how the child’s “best interests” are to be determined. Judges are provided few explicit decision-rules to determine what a child’s best interests are, much less rules that take into account a child’s changing developmental needs. Even when statutes provide broad guidelines defining the child’s best interests, these guidelines are seldom very explicit and judges are offered no guidance concerning which of these interests are most important in determining custody. This leaves judges broad discretion in defining these interests, with the result that custody awards can be determined on the basis of highly subjective criteria that may vary widely on a case-by-case basis. Alternatively, many judges simply adhere to a maternal presumption despite the changed mandate. In short, one of the greatest problems with the best interests guideline is the current lack of certainty concerning how this expression should be interpreted. A fundamental question, for example, concerns which of the child’s many “interests” should predominate in a judge’s deliberations over a custody award. Fundamentally, of course, children require the basic necessities that promote physical well being: adequate nourishment, a warm, safe home environment, sufficient health care, clothing, and an interpersonal environment that is not overtly abusive or oppressive. Beyond these basic necessities, however, there is considerable controversy concerning which of the child’s other needs merit primary consideration. Is it important that the child be with the parent who has provided the most care in the past (i.e., ensure continuity of care)? What of the child’s future educational or religious training? Should jurists be concerned with the child’s “character development”? Is continuity in living circumstances important? Should the child be with the same-sex parent? To put it simply, should the child’s best interests be strictly construed to mean only the basic requirements of adequate caregiving, or should the courts be more interested in the child’s optimal development?

There is no easy answer to this question, and opinions vary widely. Some legal scholars advocate a more limited interpretation of the child’s interests in order to curtail the court’s discretionary powers in deciding child placement cases (e.g., custody, foster care, etc.). On the other hand, some experts argue that “psychological parenting” should be the primary consideration in determining child placement; that is, to whom has the child developed a lasting emotional bond? There is, in short, no clear consensus concerning what constitute the child’s primary interests in determining a custody award.

Assuming that the best interests guideline is meant to include factors other than physical well being alone, a second question concerns the limits of this construction. That is, how do we evaluate the parental caregiving practices that promote the child’s best interests? Is one parent’s warm but permissive approach preferable to another’s less affectionate limit-setting? Should judges prefer a custody arrangement that is likely to foster a strong traditional gender identity in the child? These and a range of similar questions surround most custody decisions and concern the implicit goals and values that underly a court’s preference for one parent over the other.

It is doubtful that there is much broad consensus within most Western societies concerning these child-rearing goals and practices. As with differences in lifestyle, parents vary greatly concerning the traits and characteristics they seek to develop in their children, and they employ a range of practices for achieving these goals. This diversity contributes to the heterogeneity of a society, in fact, and courts have traditionally hesitated to infringe upon parental freedom to raise their children as they prefer. Indeed, apart from those instances in which state intervention is mandated by manifest child abuse or neglect, greater concern has been voiced over the state’s overregulation of parental decision-making in areas such as education, religious training, and medical care. In short, society encourages a great deal of freedom and diversity in child-rearing goals and practices and, by and large, the courts have insured this freedom. In the adjudication of child custody disputes, however, judges frequently rely on subjective judgments of a parent’s caretaking style that are often based on personal values and beliefs. Sometimes these judgments concern the “moral climate” of the home. In some cases, a judgment is based on a parent’s occupational commitments, political affiliations, expectation of remarriage, or economic circumstances rather than his or her relationship with the child. In short, these judgments of caretaking often involve intuitive, usually unarticulated value judgments that are relative to the values and beliefs of the judge determining a custody settlement. These values are likely to reflect sociocultural and social class biases as well as religious beliefs and moral attitudes. Importantly, they usually entail judgments of parental fitness, with secondary regard for their actual or potential effects upon the child. Thus a second difficulty with the best interests guideline concerns judging the parental practices that contribute to a child’s best interests. In the absence of a prevailing social consensus, judges tend to use their own intuitive value judgments that may or may not reflect child-centered concerns.

It is important to note, however, that intuitive judgments of parental practices are not limited to jurists. Indeed, “expert testimony” from various sources, including psychiatric witnesses and social workers, has been criticized as being largely subjective and value based, and thus unreliable. In other words, any subjective assessment of a family is likely to result in speculative and unreliable judgments. Furthermore, this unreliability is especially likely when the family is under stress (as in a custody battle), when normal patterns of interaction are affected by emotional turmoil. Thus it is doubtful whether assessments of family interaction at the time of a custody dispute–by a judge or an “expert witness”–yield meaningful information about parent-child relationships. A third ambiguity in the best interests guideline concerns the time frame within which a child’s interests are appraised. Divorce presents parents and children with immediate and difficult adjustments. Should judges seek a custody arrangement that helps the child to negotiate these short-term transitions? Or should longer-term concerns take precedence if they conflict with more immediate needs? These, too, are questions of judgment about which legislative guidelines or judicial precedent offer little guidance.

Taken together, the major difficulty with the best interests guideline is the broad interpretational latitude permitted judges in deciding custody disputes. Disagreement exists concerning which of the child’s many interests should be included in a judge’s deliberations, how these interests are translated into judgments of parental child-rearing practices (and how these practices should be assessed), and whether short-term or long-term concerns should take precedence. These conceptual ambiguities thus delegate a good deal of discretionary power to judges, with the result that custody decisions may be based on implicit value judgments that are relative and thus inappropriate to legal decision-making. Of course, these interpretational problems are most acute when the child’s best interests are broadly construed, but to some extent they are inherent within any such inclusive formulation.

In view of this, some legal scholars have called the process of child custody adjudication “indeterminate”–that is, there are often no reliable, objective and legally satisfying ways of awarding custody to a parent according to the child’s best interests. Whereas some custody cases are always relatively easy to resolve (such as when one parent is abusive, or has abandoned the family, and the other parent has not), for the majority of cases there exist no generally accepted, easily applied decision-rules by which the child’s best interests may be determined fairly and objectively. The same case presented to two judges may be decided in very different ways. The indeterminacy of child custody adjudication also has important implications outside the courtroom. Legal guidelines usually serve as negotiating parameters by which the parties to a dispute can assess their relative chances of success in adjudication and modify their demands and expectations accordingly. Under the best interests rule, fathers and mothers are provided little information of this kind. Thus articulate and consistent custody guidelines are necessary both for the adjudication process and for the interpersonal bargaining that precedes it. What is the solution to judicial indeterminacy in custody cases? Some have suggested a return to more specific, all-encompassing legislative decision-rules (e.g., custody awarded to the mother if the child is age 5 or younger; custody awarded to the same-sex parent with older children). This would limit judicial discretion, but a proportion of disputes would certainly be resolved unfairly. Another proposal is for a greater emphasis on predivorce mediation to encourage parents to seek their own solution to the custody dispute short of a court battle. A third–and more radical–alternative is to decide custody disputes by some random process: in essence, a judicial coin-flip.

Such an approach would acknowledge the inherent inability of the court to make an objective, reliable custody award, and would prevent the noncustodial parent from feeling that he or she was judged to be a less adequate parent than the spouse with custody.

Short of these alternatives, it is clear that judicial decision-making in custody disputes entails highly idiosyncratic considerations that must be addressed on a case-by-case basis. The history of the family in question, the wishes of the child, the nature of the temporary custody arrangements, the quality and quantity of predivorce parental caregiving involvement, and prospective living conditions for the child with either parent are all considerations (to name a few) that should figure prominently in a custody award and that are likely to vary from one family to another. The important question, however, is whether there exists a valid overall framework within which these factors can be considered and by which further information may be requested and evaluated. In other words, judges and lawyers require some general understanding of the nature of family functioning in intact and divorced homes in order to properly interpret and weigh these considerations relevant to the child’s best interests. Operating within such a framework, jurists may be less likely to base custody decisions upon idiosyncratic and value-laden considerations. It is in providing such an overall knowledge base that psychological research may have a limited but important role in the adjudication of child custody disputes. This is particularly true concerning the role of fathers as caregivers, which is the topic of this review.

One very important factor differentiating mother-child from father-child relationships is the quantity of caretaking. In traditional homes, of course, the mother is usually relegated childcare as well as other domestic chores while fathers spend most of their day away from the home. With the reappraisal of gender roles during the last decade, one might anticipate a softening of these traditional childcare assignments within the home. Several recent studies of time use suggest, however, that fathers are still largely uninvolved in routine caretaking tasks.

Taken together, these differences in the quality and contexts of mother-infant and father-infant interaction reflect a basic difference in each parent’s role vis-à- vis the baby. In most instances, the mother is the infant’s primary caretaker, even when she is employed outside of the home. That is, she more typically provides for the baby’s basic needs–feeding, bathing, diaper-changing, soothing of distress, preventative protection from harm, and similar ministrations–as well as being a salient social partner in low-key play. In contrast, the father’s typical role as a secondary caretaker is less focused around specific caregiving activities and more focused on vigorous, physically stimulating play with the baby. Play is thus a more basic interactive context for infants with their fathers than with their mothers; in addition, different kinds of play activities also distinguish each parent. In short, infants begin to know and develop expectations for each parent in somewhat different social contexts.

Does this division of roles mean that fathers are less competent than mothers in basic caretaking tasks? Evidently not. If you are a father, speak to an experienced Draper Utah divorce lawyer for advice on how you can get custody of your children.

Fathers are competent and responsive caretakers, whether their competence is appraised in terms of the occurrence of certain caretaking behaviors or their responsiveness to infant cues. Similarities in mother-infant and father-infant nurturant and caretaking activities have been noted for parents in other cultures as well. Such findings are ironic in view of the strong tendency of fathers to eschew caretaking roles at home. In other words, fathers can be highly competent caretakers when called upon to do so, even though they seldom assume such responsibilities spontaneously. Instead, they spend a greater proportion of their time engaged in vigorous, physically active play with their infants.

Taken together, the research on mother-infant and father-infant relationships indicates that fathers are preferred as play partners from a relatively early age, and mothers are preferentially sought when infants are fatigued, alarmed, or stressed. As earlier indicated, the paternal preference is unsurprising in view of the contexts in which infants typically encounter their fathers and the kinds of exciting, physically active games fathers play. Infants seem to learn that fathers are fun to play with during the second year. Similarly, infants’ preferences for their mothers under stress are also unsurprising in view of the maternal caretaking role in most families. Mothers typically feed, bathe, clothe and, importantly, comfort their babies when the infants are distressed; infants seem to learn early on that their mothers are a source of soothing. Thus mothers and fathers differ importantly both in their caretaking roles and, it seems, in how they are perceived by the baby from an early age. Mothers as primary caregivers in most families spend a greater amount of time with their infant sons and daughters and assume greater responsibility for routine caretaking tasks, even when they also work outside of the home. Fathers as secondary caregivers spend less time with infants overall but devote a greater proportion of their time to physically vigorous, arousing play. These differences in parental involvement are manifested early in differences in infant responsiveness. Infants prefer their fathers as play partners and respond more positively to them in these situations. Under conditions of stress, however, they turn to mothers, reflecting different expectations for each parent that develop during the first year. In short, infants learn about their mothers and fathers in different contexts, and develop different expectations for them as a result.

Often a child can become a mere cipher in conflicts over custody. Finding the right balance between the claims of two separating partners is not easy. Judges have more commonly been willing to award custody of young children to mothers on the ‘tender-years’ principle: the idea that, because of the strong natural bond between mother and child, if young children cannot be with both parents, they are better off with their mother. So, while the case for women in the custody battle may be strong, it is increasingly recognized that men, too, have grievances to be addressed and that current law can disadvantage them in a number of ways. In the vast majority of cases, custody of children on divorce is awarded to women, and contact orders, largely made to men, are often broken. There are particular cases where court decisions are likely to strike anyone as totally unfair—a non-working wife who ends a marriage because of another liaison may well be awarded children, house, and most of the couple’s financial assets, notwithstanding her responsibility for the collapse of their joint family-building project and her lack of any financial input. She is free to introduce unofficially into the family structure another man to replace the natural father in the lives of her children. With the growth of these disadvantages has come the loss of many of the previous advantages of marriage for a man, as traditionally the best way of securing not only a steady sex life, but also status in the community, and a substantial and satisfactory personal project in which he could reasonably regard himself as a vital element.

Given these tensions, it is not difficult to see why the closing years of the twentieth century should have seen demands for a new approach to child custody based on the principle that, even if divorce can end relationships between adults, it is important to maintain the child–parent relationship. The presumption is that a continuing relationship with both parents will enable both of them to offer physical, emotional, and financial support to their children. The practical goal, then, becomes a matter of seeking to ensure reasonable contact for both parties. But ‘reasonable contact’ is an imprecise concept, varying from contact on alternate weekends to a more extensive and rigid division of time mapped out in terms of days or even hours per year. So joint or shared custody, in the sense of children’s time being relatively equally divided between parents, has become the arrangement of choice for some on the basis that it finally establishes the principle of equality and the equal legal standing of women and men. It may also be promoted from the child’s point of view, as it is, for example, in parts of the USA, where co-parenting may be advocated as a matter of a child’s rights—in this case, a right to live with either parent for some of the time. But the burden such arrangements impose on children should not be underestimated. It is often argued that disruption for children can be justified if it represents an escape from extremely difficult domestic situations. But, in general, the effects of divorce on children are poor and can be measured in terms of low educational achievement, difficult relationships with parents, especially fathers, and other emotional problems.

So all this leaves us with the fundamental question of who should care for the child when a couple splits up. For this we need to understand the judgement King Solomon passed. There is, though, more to the story of Solomon’s judgement than this. Faced with the equal balance of the two rival claims, Solomon intends, or at least pretends to intend, to take a sword and split the child in two. The false claimant is ready to accept this. But the true mother calls for an end to the legal battle and its dire outcome, saying that she is ready for the sake of her child to allow it to go to the other claimant. Solomon gives the child to her for, by her willingness to sacrifice her own interest, she has unintentionally demonstrated the truth of her claim.

In many ways, equal joint custody resembles the solution proposed by King Solomon—the child must live a split life between two homes, with little time or opportunity to create a place for itself in either, and much of its potential time with peers taken up by outings with a displaced parent. In these circumstances, it may be that some parents will express their love for the child by relinquishing maximum rights, asking only reasonable and modest access, in order to give the child a life of its own.

Cases involving extreme violence represent, of course, the outer limits of the way in which custody can serve the needs or preferences of parents and ignore the vulnerability of children. But, even where violence is not a factor, contact and residence rulings can be a way, deliberate or not, for one parent to exercise control over the other, making it impossible for the other parent to gather up the threads and start again, free from harassment and disruption. There are no easy answers to post-separation arrangements looked at from the point of view of the children themselves. It would be better if parents could recognize this and acknowledge that their own decision to split up means that, as far as their children are concerned, their security, home life and frame of reference for living their lives has been unpicked. If it is difficult to secure fairness for both parents, it is even more difficult.

Reconstituted Families

In practice, separations often bring into already complex situations new people, both adults and children, who have their own needs and perspectives. For, while the initial situation may be focused on the problem of how two individuals are to share their children’s lives between them, in practice one or both partners may bring someone else into the picture, posing a challenge of adjustment both for the adults and for their children. As far as the adults are concerned, it may be difficult to accept that their children are living with the person who has replaced them in their partner’s life. It will be difficult if the new mother or father is not caring properly for the children, but in some ways just as difficult if they are doing so successfully. A mother, particularly if she is not responsible for the breach, may find it very hard to accept that the woman who is responsible for it has taken over her role and formed a bond with her children. The same applies to fathers. A man, too, may find it hard to accept the reality of his children living with the man who has taken over his own role.

Custody and access are, of course, intended to protect parents’ relationships with their children and also to secure the best interests of those children. But these are difficult goals to reconcile. Even in the best of cases, children do not like to be asked to choose between their parents. Listening to the child’s voice is a worthwhile step, but no one should be deceived into thinking that that is a universal panacea. Like the apocryphal traveller whose request for advice evokes the response ‘I would not start from here’, in most cases the child does not want the split in the first place. What children most need and most want is what normal family life provides: a chance to build their own lives and relationships with their peers, with their parents in the background for support and comfort, and preferably not as judicially ordered companions for parent and child outings.

What children want, sadly they will not always get, and sometimes society itself will pay the price. But it is worth adults at least being clear about what they are doing and not deluding themselves with anodyne suggestions that their children will be happier, or at least benefit, when their aspirations for simple childhood constants are shattered and exchanged for a new life that includes mobility, fluctuating relationships, new ‘siblings’ to negotiate with, and new parental whims to accommodate. The old mantra ‘I am only staying with you for the sake of the children’ may often have been the simple truth in the past and in many cases could have been the better choice. From the child’s point of view, it may still be so. For, on the whole, children like families—the family is a child-friendly institution and only secondarily there to keep adults happy.

Child Abuse

If your spouse is abusing your child, you should seek custody of your child. Proving child abuse is difficult as the child may be scared to speak out against the abusive parent. You will require the services of an expert witness.

Although no uniform theory is available to provide consistent answers to disputed issues between conflicting parties, there should be a common goal for all professionals acting as expert witnesses. That is, all theories and expert witnesses should work toward the best interest of the child. However, different professionals may disagree as to what is in a child’s best interest. Under this premise, lawyers need to know the fundamental similarities and differences of all theories and models of child abuse and neglect such that expert witnesses can be called upon who will select the most accurate and impartial view of the child’s best interest. In short, the knowledge provided by the expert witness should serve the functions of verification, confirmation, conversion, and education in order to increase maximal judicial validity of evidence presented in court.

Responsibilities Of The Lawyer In Using Expert Witnesses

In legal proceedings dealing with victimization, the court may require concrete and comprehensive information from experts in order to establish the evidence of responsibility, causality, liability, and damages. Therefore, the lawyer involved will need to have accurate knowledge of the (1) perpetrator (e.g., intention), (2) victim (e.g. impact), (3) victimization processes (e.g., form of maltreatment), and (4) social and legal dispositions (e.g., removal of the victimized child from the abusive environment).

Resolution for these issues relies heavily on subjective explanations and interpretations of circumstantial evidence and facts. Because of the subjective nature in explanations or inferences, the experts used by the legal profession will thus generate possibly controversial and incompatible opinions about various objective phenomena of child abuse and neglect. Therefore, in dealing with the diverse theoretical backgrounds of the experts, lawyers need to have a clear understanding of evaluation criteria for assessment of expert testimony. That is, each expert should and can be characterized in terms of his/her theorization of child abuse and neglect. Since clinical and psychological testimonies are frequently based on some theories that may have no empirically verified foundations, lawyers handling of child abuse and neglect cases, with or without the assistance of other professions, should always evaluate the admissibility of expert testimony in reference to multidisciplinary theories and knowledge. Therefore, the judicial validity of future expert testimony will rely heavily on the competency and willingness of lawyers in testing its admissibility in the areas of necessity, reliability, validity, understandability, and importance.

Above all, it relies on the ability of lawyers to identify different origins of various theoretical foundations used and to differentiate their feasibilities for application to the legal issues involved.

Child Support

In regard to the state maintaining a primary interest in the dependency component of the parent-child relationship, the cases and legislation are very clear. The economics of the tie are for state determination. Husband and wife cannot negotiate child custody and support free from judicial scrutiny and approval. The state retains an interest in these arrangements and the right to assess and alter any settlement the spouses may reach upon divorce even to modify existing arrangements in the best interests of the child.

Economic or dependency issues concerning the ongoing needs of children that are addressed in the divorce context can be compared with the nonmarital situation. Historically, marriage defined the status of children in relation to their parents and the claims they could make upon or through them. The presence or absence of marriage determined which children were labeled “legitimate” or “illegitimate” and, thus, either granted or denied benefits accrued by their parents under state insurance and compensation schemes.

The U.S. Supreme Court has reduced the significance of marriage in regard to the parent-child connection. It did so first in regard to mothers when, in Levy v. Louisiana, it held that denying damages to “illegitimate” children as a result of the wrongful death of their mother is a violation of the equal protection clause of the Fourteenth Amendment. But fathers’ connection to children has also evolved so as to not require its mediation through the institution of marriage. Unmarried fathers now have rights and responsibilities for their children that were not part of the common law scheme of things. Nonmarital children are entitled to benefits historically reserved for their marital counterparts, such as parental support, workers compensation benefits, and the right to recovery in the event of a parent’s wrongful death. Such improvements recognize the reality of dependency is more important than the status of the parents’ relationship.

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from Michael Anderson https://www.ascentlawfirm.com/divorce-lawyer-draper-utah/ from Divorce Lawyer Nelson Farms Utah https://divorcelawyernelsonfarmsutah.tumblr.com/post/190034951595

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Divorce Lawyer Draper Utah

Speak to an experienced Draper Utah divorce lawyer if you need sound legal advice on divorce. We can help you with temporary orders, child support, child custody, alimony, property division, mediation, negotiations, real estate, and much much more. Divorce law has come a long way since the time the first settlors setup their colonies in the United States.

On May 3, 1930, a large advertisement for Robert Z. Leonard’s film The Divorcee asked the readers of the Washington Post, “Has Love a Chance in Today’s Hot Pursuit of Pleasure?” Loosely based on Ursula Parrott’s 1929 novel Ex-Wife, the film starred Norma Shearer, who won an Oscar for her portrayal of the title character. From the opening scene in which Jerry, played by Shearer, boldly insists that she and Ted (Chester Morris) get married and “make a go of it” as equals, the filmmakers signaled that Shearer’s character was a quintessential “new woman,” committed to a form of female equality and independence defined by male standards. Jerry’s determination on this point is so strong, in fact, that upon discovering Ted’s affair with another woman three years into their marriage, she promptly retaliates by having an extramarital sexual encounter of her own. Ted, after learning of her infidelity, demands a divorce. Jerry plainly has overestimated the extent of her equality—a sentiment echoed in the advertisement when it teased: “Her sin was no greater than his—but she was a woman!”

Once again single, Jerry vows to enjoy her freedom and to keep her bed open to all men except for her ex-husband. She quickly, however, becomes dissatisfied and physically drained by her new life of sexual adventure. Escape presents itself in the form of a married friend named Paul (Conrad Nagel), who proposes to divorce his wife Dorothy (Judith Wood) so that he and Jerry can begin a new life together. Indeed, Dorothy is Jerry’s counterpoint throughout the film. Whereas Jerry is beautiful, Dorothy has been tragically disfigured in a car accident on the night of Jerry and Ted’s engagement. Jerry and Ted married for love, but Paul, who was heavily intoxicated when the accident occurred, married Dorothy only out of guilt. While Jerry accedes to Ted’s insistence of a divorce, Dorothy refuses to concede marital defeat and will not give Paul the divorce he so desperately desires. Comparing herself to Dorothy, Jerry realizes the many ways that she has wronged her own union with Ted. Jerry thus arrives, as one reviewer explained, at “the realization that her own marriage has been a failure because she has not had the same determination [as Dorothy] to see it through.” She resolves to find Ted, and the two have an emotional reunion in which they promise to make their new marriage a success.

By the conclusion of The Divorcée, Jerry—and by extension, the audience—have learned several lessons. First, Jerry’s desire for marital equality is foolish and unrealistic. The film does not criticize a sex-based double standard; rather, its message is that in trying to emulate men, women can lose sight of what is truly important: love and marriage. The pitiful Dorothy is the true female center of the film—she is not beautiful, but she appreciates the value of being married and is willing to fight for Paul. Moreover, the film says, sexual freedom does not ensure happiness, especially for women. Prior to their mutual transgressions, Jerry and Ted plainly enjoy a fulfilling sexual relationship. Jerry’s life as a wanton divorcée, however, is unsatisfying, and only a chance encounter with Paul prevents her from becoming a hardened seductress. Finally, while divorce is sometimes a necessity, it is also frequently the result of easily avoided misunderstandings. Only in reunification—a theme that understandably became a popular Hollywood ending—can Jerry and Ted rediscover their former happiness and lead constructive lives.

The Divorcée quickly became one of the “stand-out hits of the early summer season” of 1930, and popular demand extended its run throughout the nation. The media’s descriptions of the film—press coverage alternately described it as “a chapter out of modern life,” “a Metro-Goldwyn-Mayer production dealing with a great social problem,” and “the most sophisticated treatment of the question of divorce”—highlighted its varied appeal to audiences. By 1930 divorce had indeed become a reality of everyday American life. At the same time, however, many Americans were deeply anxious about what the escalating divorce rate meant for the family, women, and the very future of the nation. Such fears were fanned by an emergent group of experts who spent the first several decades of the twentieth century identifying a “crisis” in American marriage. These self-appointed experts, some from within the academy and some with little or no formal training in sociology or related fields, came from different parts of the political and ideological spectrum. They agreed, however, that marriage (particularly for the white middle class) was in a period of crucial transition and that married couples could not handle this transition effectively on their own. The general belief that marriage was in trouble was hardly new. Social critics and clergyman, in fact, had been decrying a “marriage problem” for most of the nation’s history. But these early critics had focused their efforts on convincing the American public of the indissolubility of the marital union and, if this former effort failed, of the need for uniform divorce laws in order to prevent most divorces. By the 1920s, however, this debate had grown increasingly stale and the arguments ineffective. The ostracism that had once accompanied the decision to divorce had subsided, and the voices of experts began to supplement, and in many cases replace, those of religious authorities in the national conversation about marriage in the United States.

As the nineteenth-century understanding of marriage as a duty faded, experts worked to convince Americans to take an active interest in the health of their marriages. They focused much of their attention on women, the traditional guardians of the home and the individuals deemed primarily responsible for the continuing changes in family life. Experts believed that if marriage was going to be a “companionate” venture—a relationship based on love and satisfying sexual relations—divorce was an important safety valve for husbands and wives who were trapped in loveless unions. They hoped, however, that by studying marriage in an objective manner, they could develop strategies that would slow the rising divorce rate and, more important, improve the general quality of American marriages. To this end, experts launched research studies intended to quantify marital success and taught marriage courses at universities. Some even began to experiment with a European technique known as “marriage counseling,” anticipating that they could prevent both ill-advised unions and unnecessary marital breakups. These efforts, in turn, laid the groundwork for a new understanding of what it meant to be married in the United States.

The nineteenth-century idealization of married, romantic love was a key ideological origin of this transition. Stereotypes of Victorian prudery aside, many American men and women—especially those from more privileged economic backgrounds—clearly expected to have intimate, loving relationships with their chosen mates. During courtship, they exchanged impassioned letters and expressed hopes that their fervent feelings would not subside after marriage. Once married, they expected to place their obligations to one another and to their growing families above those to their extended families and their civic responsibilities. Nineteenth-century Americans, therefore, gradually began to view marriage as a central life experience from which they could derive happiness and forge satisfying personal bonds. This ideal, of course, was often difficult to achieve. The Victorian belief in the innate differences between men and women, in particular, impeded the full realization of marital intimacy and romance. Many husbands and wives, in turn, struggled to share common experiences and interests with their spouses.

Nineteenth-century marriage advisers (primarily ministers and physicians) nevertheless regarded this new emphasis on love with a sense of trepidation. One root of their concern was the fact that many nineteenth-century Americans believed love to be an uncontrollable emotion. While they considered it to be a prerequisite for marriage, they did not necessarily believe that all love was eternal. If marital love was lost, no prescribed action could recapture the feeling. Critics, therefore, tried to inject a more practical view of marriage into discussions of the institution. They argued that love was a choice and that young married couples could take concrete steps to ensure that their unions remained happy. In print, advisers reminded their readers that if these efforts failed, their marriage vows remained binding. It was desirable, in other words, to be content—rather than miserable— while fulfilling ones’ duties. When nineteenth-century marriage advisers pointedly rejected the possibility of divorce, however, they betrayed a fear that not all Americans understood the sanctity of their marriage vows. This concern was not necessarily misplaced. Divorce, in a very limited form, had been available in the United States as early as the colonial era and spread in the years following the American Revolution. No sooner, it seemed, did Americans create a rationale for dissolving the bonds of empire than they set about creating rules for dissolving the bonds of matrimony. While the two acts—dissolution of empire and dissolution of marriage— existed on vastly different scales, the language used by the patriots and lawmakers to justify both was strikingly similar. Furthermore, the legitimization of divorce beyond the very strict rules of English common law helped the American legal system to sever its dependence on the English model. The theoretical legitimization of divorce as a means of ending a “tyrannical” (or sexually promiscuous) union, in other words, was ingrained in a distinctly American legal system from its onset.

The mere legality of divorce, however, did not ensure that divorce was widely available or publicly condoned after the nation’s founding. Until well into the twentieth century, couples could not divorce legally by mutual consent. While divorce laws varied widely from state to state, “fault” divorce always required that one spouse prove that the other was guilty of adultery, desertion, or some other serious failing. Until the mid-nineteenth century, an aggrieved spouse in many states had to petition his or her state legislature in the hopes of obtaining a divorce decree. Only as the number of petitions proliferated did legislators begin to move divorce cases into the courts.

The nation’s slowly rising divorce rate went largely unnoticed until the 1850s, when it became a rallying point for social critics who saw the rate as irrefutable evidence of a creeping moral decay in American life. In the 1870s and 1880s, many state legislatures made their divorce laws more stringent in (unsuccessful) attempts to decrease the number of couples eligible for divorce. Their efforts became even more urgent once a Department of Labor study in the late 1880s confirmed that the United States led the world in divorce. Interestingly, the conservative opposition to divorce rarely called for its prohibition. The potential for chaos if couples resorted to extralegal means to end their marital unions, paired with the laws’ origins in the Revolution, ensured that calls for an outright ban were muted. Plus, conservatives did not have a ready alternative to divorce for unions in which spouses flouted moral convention by committing adultery or violently assaulting their partners. The common trope of the victimized wife seeking a divorce as a last resort was too powerful an image for divorce conservatives to assail. Instead, they fought unsuccessfully for the passage of a federal divorce law that would supersede the lax laws of so-called divorce havens such as Indiana, South Dakota, and, later, Nevada.

Some men and women in the nineteenth century did support relaxed divorce laws, but their views could hardly be classified as prodivorce. Several women’s rights advocates, notably Elizabeth Cady Stanton, were in favor of divorce because it gave women a modicum of control in the face of an otherwise patriarchal institution. This stance proved divisive, however, as many other activists believed that divorce hurt women by leaving them without financial support. Other divorce supporters asserted that the availability of divorce allowed for better marriages. They pleaded in its favor, therefore, not because the availability of divorce subverted existing marriage norms, but rather because its accessibility augmented the value of marriage to American society. Their primary argument was that since the marital union was perfectible, any unions that failed to reach this high standard should be dissolved, leaving the divorced couple to pursue perfection with better-suited mates. This camp held that, at the present time, divorce was necessary but envisioned a future in which it could be eradicated. The exact details of this plan were vague, although they generally involved making it more difficult to get married. One commentator, for instance, felt that “the greatest social evil in our country is the marrying habit.”

What was truly problematic about the “marrying habit” in the minds of many Americans was not only its relationship to the rising incidence of divorce but also the perception that the wrong types of people were getting married and having children. Specifically, a significant number of the nation’s most educated women were remaining single because (among other reasons) they did not want to give up their careers—as would be expected of them—after marriage. The fight for women’s rights, as well, threatened to separate women from their traditional duties as wives and mothers. Furthermore, the birth rate among native-born, white citizens had been in a steady decline since the early nineteenth century, whereas the immigrant birth rate (considered far less desirable at the time) was quite high. President Theodore Roosevelt undoubtedly did not assuage such concerns when he popularized the idea that given present trends, native-born, white U.S. citizens were in danger of committing “race suicide.” Such rhetoric, when paired with anxieties about the divorce rate, contributed to a full-fledged sense of crisis in regard to the state of family life in the United States. Ironically, only a small percentage of Americans were getting divorced in the late nineteenth and early twentieth centuries. According to some historians there were fewer than two divorces for every thousand marriages in 1870. Certainly, many other couples created their own extralegal marital “exits,” prompted either by relationship woes or other necessity. The evidence nevertheless suggests that most Americans’ motivations for divorcing were hardly frivolous. Court records, for example, indicate that husbands and wives only sought to end their unions in extreme circumstances, such as when an offending spouse had long since disappeared, failed to provide basic necessities, or had committed adultery.

While many divorcing men and women also knew what the courts needed to hear in order to decide in their favor and may well have tailored their cases to fit such expectations, the low divorce rate nevertheless points to the serious personal and social consequences that accompanied the decision to divorce in Victorian America. At the time, after all, “evil” was the word most frequently paired with “divorce” in the popular press and in religious and legal circles. Most popular fiction, in turn, portrayed divorce as shameful and emphasized its harmful effects on individuals and society at large. The deleterious consequences of divorce were particularly evident for women. For wives without independent financial means, the infrequency of alimony allocations meant that divorce could lead to reduced circumstances or even destitution. Plus, divorce clearly represented a grave failure for any woman who embraced a Victorian identity as the moral guardian of the home, especially if her husband had succumbed to temptation and committed adultery. Many Americans believed divorced men and women to be morally suspect, and the divorced faced an uncertain social future based on their decision to end a marriage, no matter what had motivated them to do so.

The contemporary meaning of marriage is no easier to pin down and ascertain if we look at it from a societal, rather than an individual or legal, perspective. It is true that there are more public justifications for marriage from society, but marriage also has multiple potential meanings to the society that constructs and contains it. In fact, the express, explicit reasons for marriage from society’s perspective have not changed all that much over time. Some are mundane, such as the need for a certain formal record keeping and for the assignment of responsibilities and rights among persons (e.g., to facilitate property transfers at death or identify persons responsible for payment of household debts).

There are some benefits for society expressed through its interest in marriage in regard to public health. The application for a marriage license can also be the occasion for mandatory health screening or counseling on genetics. It can be used for social engineering purposes, such as to supply information on the importance of marriage or to educate couples about the purported negative impact on their children, should they have any, from any future decision to separate and divorce.

The American marital entity has an interesting lineage as a legal category. It is directly tied to one religious set of concepts and beliefs. Looking back into its legal history, we see that marriage was not created de novo as an American institution. As a legal relationship, its content and terms were drawn from British institutions that had evolved rules exemplifying rigid relationships.

In England there was a direct historic connection between the state religion and the legal treatment of intimate relationships. Marriage was a sacrament administered by the church and subject to its rules. Under the common-law system in effect in England until fairly recently (as legal institutions go), issues concerning the creation and dissolution of marriage and other aspects of family formation were left to the ecclesiastical courts. It was not until the passage of the Matrimonial Causes Act of 1857 that jurisdiction over marriage and divorce was transferred to civil courts. Consistent with the precepts of their religious approach, these courts viewed marriage as a lifelong commitment. An annulment or, failing that, desertion, was virtually the only route out of an unhappy union. The Church of England’s ecclesiastical courts could grant a divorce “from bed and board,” which allowed couples to live apart but not remarry. Divorce was theoretically available, but only through a special act of Parliament, and between 1800 and 1836, an average of three such bills of divorce were granted each year. Generally, access to divorce was limited until the late twentieth century. This view of the presumed permanence of marriage was also evident in colonial America, where divorce could be granted by a secular judiciary, but this rarely happened. In fact, prior to the mid-twentieth century in the United States, judicial divorce although increasingly more common over time than in the colonial period, was available only for “cause.” “Cause” could include adultery (in New York this was the only cause that justified divorce in 1787), as well as “impotence, adultery, intolerable severity, three years’ willful desertion, and long absence with presumption of death” (Vermont in 1798) and “gross misbehavior and wickedness in either of the parties, repugnant to and in violation of the marriage covenant”. Today in Utah you can seek a divorce on various grounds including adultery, impotence and desertion. Speak to an experienced Draper Utah divorce lawyer to know the various under which you can seek a divorce from your spouse.

An “innocent” spouse could ask the state to sever the marital tie when she or he was successful in demonstrating the “fault” of her or his mate. Fault grounds indicated there had been some egregious offense to the very marital union. States such as New York at that time permitted divorce only for very serious offenses that were considered to undermine the nature of the marital connection, such as adultery. Other states considered the amorphous category of “cruelty” to be a sufficient basis for dissolution. Colonial divorce laws varied considerably by region, with the northeastern states tending to be slightly more liberal than their southern neighbors. In the United States there was no established state religion, but the relationship between religious perceptions and beliefs about marriage and the construction of state principles regarding that connection were still evident, if attenuated. The individual states incorporated common-law concepts and definitions from the religiously shaped English rules into their laws governing family. American judges tracked the religious rhetoric of their English counterparts when considering issues involving the family. Divine laws governed family relationships, setting out the natural order for the individuals who entered them. The content of the marital relationship was also divinely structured. In what has become one of the most famous concurrences in the American legal tradition, in the 1873 Supreme Court case of Bradwell v. Illinois, Justice Bradley made what is still considered the classic statement regarding the common-law perception of the divinely determined distinct roles of husbands and wives. The organization of the traditional family in the British and American legal tradition was also patriarchal, with the husband—“head” of the family—owed obedience and domestic and sexual services from his wife. In return, he was obligated to support her and their children. The husband’s role conferred rights as well as responsibilities, including the right to punish family members. Because he bore responsibility for their actions, a husband had the right to reasonably chastise both wife and children. His support obligations also gave him a corresponding right to the earnings of his wife and children, and to control over their property.

Further, the view of marriage expressed by Justice Bradley and the divinely ordained respective positions of the spouses also limited the expectations and opportunities for married women in the larger society. The marital family’s hierarchically organized and well-defined gender roles placed the spouses in different spheres. Women, excluded from many of the public aspects of life, were perceived as appropriately dependent. As the Bradley concurrence in Bradwell expressed, their true calling was considered to be the home and family.

This ordering of domestic life was intuitive—a response to the natural dependency of women. Common law imposed disabilities on women that supported this ordering of the world. Married women were not able to own property or make contracts. In some instances they could not even be held responsible for their own torts or crimes. Their husbands, perceived as controlling them absolutely, were charged instead.

The common law expressed a structure in which the distinct specializations of the spouses complemented each other: the wage earner and the housewife; the protector and the protected; the independent and the dependent. Each spouse needed his or her complement in order to attain and maintain a whole, complete family entity, one that provided for all its members’ needs. This specialization, bringing together the head and the heart of the family in the form of husband and wife, allowed the marital family to function in a self-sufficient manner, providing both economic and domestic resources to the unit.

This unequal, if complementary, positioning of men and women within the common-law family became problematic for women when divorce became more prevalent under no-fault statutes. These statutes changed a fundamental aspect of marriage. Marriage in its common-law manifestation was considered a lifelong commitment, but no-fault divorces ushered in a revolution in our way of thinking about the permanence of the relationship of marriage. No-fault meant much easier access to divorce. In many states divorce became available on unilateral demand of one spouse even over the objection of the other that the relationship could be salvaged. Men who wanted to be free of their “faultless” wives (as determined under the previous fault divorce statutes) no longer had to bargain with those wives and buy their complicity in the divorce process through concession of property or other economic incentives.

Initiated by both wives and husbands, no-fault opened the divorce floodgate and exposed the economic vulnerability of the common-law assignment of ownership of all wages and property to the wage earner. Wives were not considered entitled to a share of property accumulated during the marriage, since they did not earn the money to buy it and typically title was in the husband’s name. As a result, women found themselves and their children destitute at divorce.

The discouragement of married women from participation in the workplace and investment in a career also had more general negative economic implications. After a divorce, women found that they had to work in the marketplace as well as in the home, yet the old vision of marriage had discouraged them from honing the skills they needed to do so. All this has changed, of course. The no-fault revolution coincided with another revolution in the way we understand the world—the gender equality movement, which ushered in massive changes in all phases of life, including marriage.

No Fault Divorce In Draper Utah

The move to no-fault divorce might have altered our view of marriage, but the gender equality revolution altered the way women perceive their societal, nonfamilial roles. It seems hard to believe that it was less than a century ago that women won important political and civil rights, such as the vote, which was achieved in 1920 with the passage of the Nineteenth Amendment. Even after women achieved the right to vote, they were still excluded from service on juries. Although the first women were summoned to jury service in 1870, as a rule, women were systematically denied or exempted from jury service for the next century, usually for reasons that were considered “benign” and “practical”. It was not until 1994, in J.E.B. v. T.B., that the Supreme Court declared that peremptory challenges based on sex violate the equal protection clause of the Fourteenth Amendment. Until recently, the common-law rule was that a woman’s domicile (essentially her legal place of residence) was always the same as her husband’s. This caused difficulty for many married women, as a person’s domicile is used in determining numerous legal entitlements, categories, and qualifications. Because a woman’s legal identity had traditionally been merged with that of her husband, her domicile was assigned based on her husband’s place of residence, and a woman had no control over this determination. As divorce laws changed and women’s destinies were less tied to the institution of marriage, the inappropriateness of this situation became more obvious. The common-law rule began to change in the 1970s, and the American Law Institute finally ratified this change in 1988.

Prenuptial Agreements

Prenuptial agreements have come to enjoy a presumption of validity, as long as they were made voluntarily and with full disclosure of financial information. Some courts still maintain the additional requirement that an agreement be substantively “fair” to both parties. Even while they do so, recognition is typically given to the changes in gender expectations. If you are planning a divorce and have a prenuptial agreement in place, consult with an experienced Draper Utah divorce law. The lawyer will review your prenuptial agreement and advise you on whether the agreement will be held valid by the court.

Child Custody And Child Support

The past few decades have witnessed a dramatic increase in the divorce rate in the United States and elsewhere, a phenomenon that reflects and influences changing social attitudes toward marriage and the family. When offspring are involved, the divorce process becomes further complicated by considerations over custody and visitation rights. And when the parents themselves cannot resolve these issues, the courts are faced with the difficult task of making a custody decision.

First, despite important differences in the amount of time they spend with their infants and young children, both fathers and mothers are significant figures in the infant’s world from a very early age. By the end of the first year, infants recognize both parents and prefer them to unfamiliar adults. By this time and increasingly during the second year, infants respond differently to each parent, reflecting the development of a rudimentary appreciation of each parent’s unique role in their world. The research indicates that there are more similarities than differences in infant responsiveness to fathers and mothers: They protest separation from either parent, delight in being reunited with them, and play comfortably in the presence of either father or mother. By all accounts, it is apparent that infants develop emotionally salient attachment relationships with each parent by the end of the first year. In short, both mother and father are “psychological parents” to their young infants, even when the father does not assume major caregiving responsibilities. There is every reason to assume that the psychological salience of each parent persists as the child grows older.

Second, even though both parents are important figures in the infant’s world, mothers and fathers differ significantly in their caretaking roles and responsibilities in most homes. Mothers typically assume basic caretaking tasks such as feeding, cleaning, dressing, soothing of distress, and preventative protection from harm. When they play with their babies, they use low-key verbally-oriented and toy-mediated games. In contrast, fathers are typically much less involved in routine caretaking tasks. Rather, they spend a greater proportion of their time engaged in play–specifically, a vigorous rough-and-tumble, physically stimulating kind of play.

The adjudication of child custody disputes raises important and interesting questions, among them the role of fathers as caregivers. For many years, courts have assumed a preference for the mother, contending that a mother’s nurturance and love constitute irreplaceable components of early socio-personality development, particularly during the “tender years.” More recently, however, judges have been using a more egalitarian “best interests of the child” guideline, in which mother and father can compete on a more equal footing for the custody of offspring. Yet this new guideline is a mixed blessing. Although it opens the door to fathers, its conceptual ambiguity permits a wider latitude of subjective judgment on the part of judges, which often results in an implicit maternal preference. The question of what are the child’s “best interests,” and how these may be served by a custody decision, is crucial if this decision-rule is to play a useful role in the custody adjudication process.

In hearing a custody dispute, a judge is faced with an unusual and difficult decision. Most legal disputes focus on the documentation of facts relevant to a case; child custody decisions entail more subjective judgments of parental caregiving competence. Furthermore, custody disputes cannot be resolved on the basis of judicial precedent. Rather, they must be addressed on a case-by-case basis, taking into consideration the unique history and circumstances of the family in question. The judge’s decision-making is further complicated by the predictive nature of the custody award. That is, he or she must consider the long-term ramifications of the decision, including the future economic and living conditions of each parent, the developmental needs of the child, and the potential availability of extrafamilial support systems. Finally, custody decisions rely heavily upon a judge’s discretionary powers in applying legislative guidelines to the particular family in question.

To be sure, most parents who divorce can agree on custody of the children without seeking judicial help. Despite the dramatic increase in the rate of divorce over the past two decades and the broadening of legislative guidelines to put parents on a more equal footing in seeking custody, fewer than 15% of the couples who divorce will proceed with a fully contested custody battle. And, of course, the overwhelming majority of custody awards are to the mother: Fewer than 10% of divorce decrees award children to the father. In many cases, fathers who receive custody do so with the consent of the noncustodial mother.

But although the proportion of disputed custody cases seems to be stable, the absolute number of disputes is increasing sharply due to the rising divorce rate. Coupled with the gradual changes in parental roles evoked, in part, by the increasing number of working mothers, it is reasonable to expect that the number of divorce petitions in which both parents want custody will continue to increase in the years to come. Therefore, it is important to clarify the guidelines by which judges resolve these disputes. The legislative guideline that currently prevails in most states–that is, awarding custody according to the “best interests of the child”–is historically the least explicit. Interestingly, English legal tradition long asserted a paternal preference, reflecting a time in which offspring were regarded as heirs to privilege and wealth and as parental property. Thus the father was viewed as the primary guardian of his legitimate children and, in the event of a dissolution of the marital bond, he assumed exclusive custodial rights. With the changes in social structure wrought by the Industrial Revolution and changes in social philosophy provoked by writers like Locke and Rousseau, this common law assumption gradually broke down. Instead, by the 19th century, both English and American law put the wife on an equal footing with her husband: Both were to receive equal consideration in a custody decision. In practice, however, this usually resulted in an implicit maternal preference, because custody decisions were based on evaluations of parental fitness and wives, as the customary initiators of divorce action, were in a better position to argue against their husbands. Concurrently, an explicit maternal preference when the children were in their “tender years” (generally speaking, under the age of seven) helped to consolidate this implicit bias for the mother in the courts. In short, changing judicial guidelines were reflecting changing social values. Childhood was increasingly viewed as a period of nurturance and education, and mothers typically assumed a major role for both. Early in the 20th century the maternal presumption became consolidated in judicial decision-making, sometimes by explicit statute but more often in the form of case law.

Jurists assumed that, except in instances when the mother was clearly unfit, it was consistently best for the child to benefit from the love and nurturance provided by the mother. They were supported in this assumption by contemporary psychoanalytic theory, which stressed the unique role of a mother’s love to early psychological development.

More recently, however, the maternal presumption has been increasingly questioned in favor of a more egalitarian guideline. Much of the impetus for this reconsideration has come from social critics who regard the maternal preference as inherently sexist and a perpetuation of traditional gender roles. The dramatic rise in the number of working mothers in recent years and the concurrent increase in demand for infant and preschool childcare services are particularly salient manifestations of the changing American family. Thus the traditional family system in which mother is a fulltime caregiver is no longer the norm, and this has undermined the rationale for an explicit preference for mother in custody disputes. In addition, of course, there are a number of instances in which an explicit maternal presumption is clearly inappropriate, such as when the father or another person has assumed sole caregiving responsibilities, or when the mother is abusive or neglectful. Finally, many critics contend that the maternal presumption focused attention on judicial evaluations of parental fitness rather than on child-centered concerns. Thus the purpose of the best interests guideline is to encourage an appraisal of the custody dispute in light of the contributions (actual and potential) of each parent to the child’s present and future needs.

Problems with the Best Interests Of The Child Guideline

This legislative intent may be significantly undermined, however, by the ambiguity concerning how the child’s “best interests” are to be determined. Judges are provided few explicit decision-rules to determine what a child’s best interests are, much less rules that take into account a child’s changing developmental needs. Even when statutes provide broad guidelines defining the child’s best interests, these guidelines are seldom very explicit and judges are offered no guidance concerning which of these interests are most important in determining custody. This leaves judges broad discretion in defining these interests, with the result that custody awards can be determined on the basis of highly subjective criteria that may vary widely on a case-by-case basis. Alternatively, many judges simply adhere to a maternal presumption despite the changed mandate. In short, one of the greatest problems with the best interests guideline is the current lack of certainty concerning how this expression should be interpreted. A fundamental question, for example, concerns which of the child’s many “interests” should predominate in a judge’s deliberations over a custody award. Fundamentally, of course, children require the basic necessities that promote physical well being: adequate nourishment, a warm, safe home environment, sufficient health care, clothing, and an interpersonal environment that is not overtly abusive or oppressive. Beyond these basic necessities, however, there is considerable controversy concerning which of the child’s other needs merit primary consideration. Is it important that the child be with the parent who has provided the most care in the past (i.e., ensure continuity of care)? What of the child’s future educational or religious training? Should jurists be concerned with the child’s “character development”? Is continuity in living circumstances important? Should the child be with the same-sex parent? To put it simply, should the child’s best interests be strictly construed to mean only the basic requirements of adequate caregiving, or should the courts be more interested in the child’s optimal development?

There is no easy answer to this question, and opinions vary widely. Some legal scholars advocate a more limited interpretation of the child’s interests in order to curtail the court’s discretionary powers in deciding child placement cases (e.g., custody, foster care, etc.). On the other hand, some experts argue that “psychological parenting” should be the primary consideration in determining child placement; that is, to whom has the child developed a lasting emotional bond? There is, in short, no clear consensus concerning what constitute the child’s primary interests in determining a custody award.

Assuming that the best interests guideline is meant to include factors other than physical well being alone, a second question concerns the limits of this construction. That is, how do we evaluate the parental caregiving practices that promote the child’s best interests? Is one parent’s warm but permissive approach preferable to another’s less affectionate limit-setting? Should judges prefer a custody arrangement that is likely to foster a strong traditional gender identity in the child? These and a range of similar questions surround most custody decisions and concern the implicit goals and values that underly a court’s preference for one parent over the other.

It is doubtful that there is much broad consensus within most Western societies concerning these child-rearing goals and practices. As with differences in lifestyle, parents vary greatly concerning the traits and characteristics they seek to develop in their children, and they employ a range of practices for achieving these goals. This diversity contributes to the heterogeneity of a society, in fact, and courts have traditionally hesitated to infringe upon parental freedom to raise their children as they prefer. Indeed, apart from those instances in which state intervention is mandated by manifest child abuse or neglect, greater concern has been voiced over the state’s overregulation of parental decision-making in areas such as education, religious training, and medical care. In short, society encourages a great deal of freedom and diversity in child-rearing goals and practices and, by and large, the courts have insured this freedom. In the adjudication of child custody disputes, however, judges frequently rely on subjective judgments of a parent’s caretaking style that are often based on personal values and beliefs. Sometimes these judgments concern the “moral climate” of the home. In some cases, a judgment is based on a parent’s occupational commitments, political affiliations, expectation of remarriage, or economic circumstances rather than his or her relationship with the child. In short, these judgments of caretaking often involve intuitive, usually unarticulated value judgments that are relative to the values and beliefs of the judge determining a custody settlement. These values are likely to reflect sociocultural and social class biases as well as religious beliefs and moral attitudes. Importantly, they usually entail judgments of parental fitness, with secondary regard for their actual or potential effects upon the child. Thus a second difficulty with the best interests guideline concerns judging the parental practices that contribute to a child’s best interests. In the absence of a prevailing social consensus, judges tend to use their own intuitive value judgments that may or may not reflect child-centered concerns.

It is important to note, however, that intuitive judgments of parental practices are not limited to jurists. Indeed, “expert testimony” from various sources, including psychiatric witnesses and social workers, has been criticized as being largely subjective and value based, and thus unreliable. In other words, any subjective assessment of a family is likely to result in speculative and unreliable judgments. Furthermore, this unreliability is especially likely when the family is under stress (as in a custody battle), when normal patterns of interaction are affected by emotional turmoil. Thus it is doubtful whether assessments of family interaction at the time of a custody dispute–by a judge or an “expert witness”–yield meaningful information about parent-child relationships. A third ambiguity in the best interests guideline concerns the time frame within which a child’s interests are appraised. Divorce presents parents and children with immediate and difficult adjustments. Should judges seek a custody arrangement that helps the child to negotiate these short-term transitions? Or should longer-term concerns take precedence if they conflict with more immediate needs? These, too, are questions of judgment about which legislative guidelines or judicial precedent offer little guidance.

Taken together, the major difficulty with the best interests guideline is the broad interpretational latitude permitted judges in deciding custody disputes. Disagreement exists concerning which of the child’s many interests should be included in a judge’s deliberations, how these interests are translated into judgments of parental child-rearing practices (and how these practices should be assessed), and whether short-term or long-term concerns should take precedence. These conceptual ambiguities thus delegate a good deal of discretionary power to judges, with the result that custody decisions may be based on implicit value judgments that are relative and thus inappropriate to legal decision-making. Of course, these interpretational problems are most acute when the child’s best interests are broadly construed, but to some extent they are inherent within any such inclusive formulation.

In view of this, some legal scholars have called the process of child custody adjudication “indeterminate”–that is, there are often no reliable, objective and legally satisfying ways of awarding custody to a parent according to the child’s best interests. Whereas some custody cases are always relatively easy to resolve (such as when one parent is abusive, or has abandoned the family, and the other parent has not), for the majority of cases there exist no generally accepted, easily applied decision-rules by which the child’s best interests may be determined fairly and objectively. The same case presented to two judges may be decided in very different ways. The indeterminacy of child custody adjudication also has important implications outside the courtroom. Legal guidelines usually serve as negotiating parameters by which the parties to a dispute can assess their relative chances of success in adjudication and modify their demands and expectations accordingly. Under the best interests rule, fathers and mothers are provided little information of this kind. Thus articulate and consistent custody guidelines are necessary both for the adjudication process and for the interpersonal bargaining that precedes it. What is the solution to judicial indeterminacy in custody cases? Some have suggested a return to more specific, all-encompassing legislative decision-rules (e.g., custody awarded to the mother if the child is age 5 or younger; custody awarded to the same-sex parent with older children). This would limit judicial discretion, but a proportion of disputes would certainly be resolved unfairly. Another proposal is for a greater emphasis on predivorce mediation to encourage parents to seek their own solution to the custody dispute short of a court battle. A third–and more radical–alternative is to decide custody disputes by some random process: in essence, a judicial coin-flip.

Such an approach would acknowledge the inherent inability of the court to make an objective, reliable custody award, and would prevent the noncustodial parent from feeling that he or she was judged to be a less adequate parent than the spouse with custody.

Short of these alternatives, it is clear that judicial decision-making in custody disputes entails highly idiosyncratic considerations that must be addressed on a case-by-case basis. The history of the family in question, the wishes of the child, the nature of the temporary custody arrangements, the quality and quantity of predivorce parental caregiving involvement, and prospective living conditions for the child with either parent are all considerations (to name a few) that should figure prominently in a custody award and that are likely to vary from one family to another. The important question, however, is whether there exists a valid overall framework within which these factors can be considered and by which further information may be requested and evaluated. In other words, judges and lawyers require some general understanding of the nature of family functioning in intact and divorced homes in order to properly interpret and weigh these considerations relevant to the child’s best interests. Operating within such a framework, jurists may be less likely to base custody decisions upon idiosyncratic and value-laden considerations. It is in providing such an overall knowledge base that psychological research may have a limited but important role in the adjudication of child custody disputes. This is particularly true concerning the role of fathers as caregivers, which is the topic of this review.

One very important factor differentiating mother-child from father-child relationships is the quantity of caretaking. In traditional homes, of course, the mother is usually relegated childcare as well as other domestic chores while fathers spend most of their day away from the home. With the reappraisal of gender roles during the last decade, one might anticipate a softening of these traditional childcare assignments within the home. Several recent studies of time use suggest, however, that fathers are still largely uninvolved in routine caretaking tasks.

Taken together, these differences in the quality and contexts of mother-infant and father-infant interaction reflect a basic difference in each parent’s role vis-à- vis the baby. In most instances, the mother is the infant’s primary caretaker, even when she is employed outside of the home. That is, she more typically provides for the baby’s basic needs–feeding, bathing, diaper-changing, soothing of distress, preventative protection from harm, and similar ministrations–as well as being a salient social partner in low-key play. In contrast, the father’s typical role as a secondary caretaker is less focused around specific caregiving activities and more focused on vigorous, physically stimulating play with the baby. Play is thus a more basic interactive context for infants with their fathers than with their mothers; in addition, different kinds of play activities also distinguish each parent. In short, infants begin to know and develop expectations for each parent in somewhat different social contexts.

Does this division of roles mean that fathers are less competent than mothers in basic caretaking tasks? Evidently not. If you are a father, speak to an experienced Draper Utah divorce lawyer for advice on how you can get custody of your children.

Fathers are competent and responsive caretakers, whether their competence is appraised in terms of the occurrence of certain caretaking behaviors or their responsiveness to infant cues. Similarities in mother-infant and father-infant nurturant and caretaking activities have been noted for parents in other cultures as well. Such findings are ironic in view of the strong tendency of fathers to eschew caretaking roles at home. In other words, fathers can be highly competent caretakers when called upon to do so, even though they seldom assume such responsibilities spontaneously. Instead, they spend a greater proportion of their time engaged in vigorous, physically active play with their infants.

Taken together, the research on mother-infant and father-infant relationships indicates that fathers are preferred as play partners from a relatively early age, and mothers are preferentially sought when infants are fatigued, alarmed, or stressed. As earlier indicated, the paternal preference is unsurprising in view of the contexts in which infants typically encounter their fathers and the kinds of exciting, physically active games fathers play. Infants seem to learn that fathers are fun to play with during the second year. Similarly, infants’ preferences for their mothers under stress are also unsurprising in view of the maternal caretaking role in most families. Mothers typically feed, bathe, clothe and, importantly, comfort their babies when the infants are distressed; infants seem to learn early on that their mothers are a source of soothing. Thus mothers and fathers differ importantly both in their caretaking roles and, it seems, in how they are perceived by the baby from an early age. Mothers as primary caregivers in most families spend a greater amount of time with their infant sons and daughters and assume greater responsibility for routine caretaking tasks, even when they also work outside of the home. Fathers as secondary caregivers spend less time with infants overall but devote a greater proportion of their time to physically vigorous, arousing play. These differences in parental involvement are manifested early in differences in infant responsiveness. Infants prefer their fathers as play partners and respond more positively to them in these situations. Under conditions of stress, however, they turn to mothers, reflecting different expectations for each parent that develop during the first year. In short, infants learn about their mothers and fathers in different contexts, and develop different expectations for them as a result.

Often a child can become a mere cipher in conflicts over custody. Finding the right balance between the claims of two separating partners is not easy. Judges have more commonly been willing to award custody of young children to mothers on the ‘tender-years’ principle: the idea that, because of the strong natural bond between mother and child, if young children cannot be with both parents, they are better off with their mother. So, while the case for women in the custody battle may be strong, it is increasingly recognized that men, too, have grievances to be addressed and that current law can disadvantage them in a number of ways. In the vast majority of cases, custody of children on divorce is awarded to women, and contact orders, largely made to men, are often broken. There are particular cases where court decisions are likely to strike anyone as totally unfair—a non-working wife who ends a marriage because of another liaison may well be awarded children, house, and most of the couple’s financial assets, notwithstanding her responsibility for the collapse of their joint family-building project and her lack of any financial input. She is free to introduce unofficially into the family structure another man to replace the natural father in the lives of her children. With the growth of these disadvantages has come the loss of many of the previous advantages of marriage for a man, as traditionally the best way of securing not only a steady sex life, but also status in the community, and a substantial and satisfactory personal project in which he could reasonably regard himself as a vital element.

Given these tensions, it is not difficult to see why the closing years of the twentieth century should have seen demands for a new approach to child custody based on the principle that, even if divorce can end relationships between adults, it is important to maintain the child–parent relationship. The presumption is that a continuing relationship with both parents will enable both of them to offer physical, emotional, and financial support to their children. The practical goal, then, becomes a matter of seeking to ensure reasonable contact for both parties. But ‘reasonable contact’ is an imprecise concept, varying from contact on alternate weekends to a more extensive and rigid division of time mapped out in terms of days or even hours per year. So joint or shared custody, in the sense of children’s time being relatively equally divided between parents, has become the arrangement of choice for some on the basis that it finally establishes the principle of equality and the equal legal standing of women and men. It may also be promoted from the child’s point of view, as it is, for example, in parts of the USA, where co-parenting may be advocated as a matter of a child’s rights—in this case, a right to live with either parent for some of the time. But the burden such arrangements impose on children should not be underestimated. It is often argued that disruption for children can be justified if it represents an escape from extremely difficult domestic situations. But, in general, the effects of divorce on children are poor and can be measured in terms of low educational achievement, difficult relationships with parents, especially fathers, and other emotional problems.

So all this leaves us with the fundamental question of who should care for the child when a couple splits up. For this we need to understand the judgement King Solomon passed. There is, though, more to the story of Solomon’s judgement than this. Faced with the equal balance of the two rival claims, Solomon intends, or at least pretends to intend, to take a sword and split the child in two. The false claimant is ready to accept this. But the true mother calls for an end to the legal battle and its dire outcome, saying that she is ready for the sake of her child to allow it to go to the other claimant. Solomon gives the child to her for, by her willingness to sacrifice her own interest, she has unintentionally demonstrated the truth of her claim.

In many ways, equal joint custody resembles the solution proposed by King Solomon—the child must live a split life between two homes, with little time or opportunity to create a place for itself in either, and much of its potential time with peers taken up by outings with a displaced parent. In these circumstances, it may be that some parents will express their love for the child by relinquishing maximum rights, asking only reasonable and modest access, in order to give the child a life of its own.

Cases involving extreme violence represent, of course, the outer limits of the way in which custody can serve the needs or preferences of parents and ignore the vulnerability of children. But, even where violence is not a factor, contact and residence rulings can be a way, deliberate or not, for one parent to exercise control over the other, making it impossible for the other parent to gather up the threads and start again, free from harassment and disruption. There are no easy answers to post-separation arrangements looked at from the point of view of the children themselves. It would be better if parents could recognize this and acknowledge that their own decision to split up means that, as far as their children are concerned, their security, home life and frame of reference for living their lives has been unpicked. If it is difficult to secure fairness for both parents, it is even more difficult.

Reconstituted Families

In practice, separations often bring into already complex situations new people, both adults and children, who have their own needs and perspectives. For, while the initial situation may be focused on the problem of how two individuals are to share their children’s lives between them, in practice one or both partners may bring someone else into the picture, posing a challenge of adjustment both for the adults and for their children. As far as the adults are concerned, it may be difficult to accept that their children are living with the person who has replaced them in their partner’s life. It will be difficult if the new mother or father is not caring properly for the children, but in some ways just as difficult if they are doing so successfully. A mother, particularly if she is not responsible for the breach, may find it very hard to accept that the woman who is responsible for it has taken over her role and formed a bond with her children. The same applies to fathers. A man, too, may find it hard to accept the reality of his children living with the man who has taken over his own role.

Custody and access are, of course, intended to protect parents’ relationships with their children and also to secure the best interests of those children. But these are difficult goals to reconcile. Even in the best of cases, children do not like to be asked to choose between their parents. Listening to the child’s voice is a worthwhile step, but no one should be deceived into thinking that that is a universal panacea. Like the apocryphal traveller whose request for advice evokes the response ‘I would not start from here’, in most cases the child does not want the split in the first place. What children most need and most want is what normal family life provides: a chance to build their own lives and relationships with their peers, with their parents in the background for support and comfort, and preferably not as judicially ordered companions for parent and child outings.

What children want, sadly they will not always get, and sometimes society itself will pay the price. But it is worth adults at least being clear about what they are doing and not deluding themselves with anodyne suggestions that their children will be happier, or at least benefit, when their aspirations for simple childhood constants are shattered and exchanged for a new life that includes mobility, fluctuating relationships, new ‘siblings’ to negotiate with, and new parental whims to accommodate. The old mantra ‘I am only staying with you for the sake of the children’ may often have been the simple truth in the past and in many cases could have been the better choice. From the child’s point of view, it may still be so. For, on the whole, children like families—the family is a child-friendly institution and only secondarily there to keep adults happy.

Child Abuse

If your spouse is abusing your child, you should seek custody of your child. Proving child abuse is difficult as the child may be scared to speak out against the abusive parent. You will require the services of an expert witness.

Although no uniform theory is available to provide consistent answers to disputed issues between conflicting parties, there should be a common goal for all professionals acting as expert witnesses. That is, all theories and expert witnesses should work toward the best interest of the child. However, different professionals may disagree as to what is in a child’s best interest. Under this premise, lawyers need to know the fundamental similarities and differences of all theories and models of child abuse and neglect such that expert witnesses can be called upon who will select the most accurate and impartial view of the child’s best interest. In short, the knowledge provided by the expert witness should serve the functions of verification, confirmation, conversion, and education in order to increase maximal judicial validity of evidence presented in court.

Responsibilities Of The Lawyer In Using Expert Witnesses

In legal proceedings dealing with victimization, the court may require concrete and comprehensive information from experts in order to establish the evidence of responsibility, causality, liability, and damages. Therefore, the lawyer involved will need to have accurate knowledge of the (1) perpetrator (e.g., intention), (2) victim (e.g. impact), (3) victimization processes (e.g., form of maltreatment), and (4) social and legal dispositions (e.g., removal of the victimized child from the abusive environment).

Resolution for these issues relies heavily on subjective explanations and interpretations of circumstantial evidence and facts. Because of the subjective nature in explanations or inferences, the experts used by the legal profession will thus generate possibly controversial and incompatible opinions about various objective phenomena of child abuse and neglect. Therefore, in dealing with the diverse theoretical backgrounds of the experts, lawyers need to have a clear understanding of evaluation criteria for assessment of expert testimony. That is, each expert should and can be characterized in terms of his/her theorization of child abuse and neglect. Since clinical and psychological testimonies are frequently based on some theories that may have no empirically verified foundations, lawyers handling of child abuse and neglect cases, with or without the assistance of other professions, should always evaluate the admissibility of expert testimony in reference to multidisciplinary theories and knowledge. Therefore, the judicial validity of future expert testimony will rely heavily on the competency and willingness of lawyers in testing its admissibility in the areas of necessity, reliability, validity, understandability, and importance.

Above all, it relies on the ability of lawyers to identify different origins of various theoretical foundations used and to differentiate their feasibilities for application to the legal issues involved.

Child Support

In regard to the state maintaining a primary interest in the dependency component of the parent-child relationship, the cases and legislation are very clear. The economics of the tie are for state determination. Husband and wife cannot negotiate child custody and support free from judicial scrutiny and approval. The state retains an interest in these arrangements and the right to assess and alter any settlement the spouses may reach upon divorce even to modify existing arrangements in the best interests of the child.

Economic or dependency issues concerning the ongoing needs of children that are addressed in the divorce context can be compared with the nonmarital situation. Historically, marriage defined the status of children in relation to their parents and the claims they could make upon or through them. The presence or absence of marriage determined which children were labeled “legitimate” or “illegitimate” and, thus, either granted or denied benefits accrued by their parents under state insurance and compensation schemes.

The U.S. Supreme Court has reduced the significance of marriage in regard to the parent-child connection. It did so first in regard to mothers when, in Levy v. Louisiana, it held that denying damages to “illegitimate” children as a result of the wrongful death of their mother is a violation of the equal protection clause of the Fourteenth Amendment. But fathers’ connection to children has also evolved so as to not require its mediation through the institution of marriage. Unmarried fathers now have rights and responsibilities for their children that were not part of the common law scheme of things. Nonmarital children are entitled to benefits historically reserved for their marital counterparts, such as parental support, workers compensation benefits, and the right to recovery in the event of a parent’s wrongful death. Such improvements recognize the reality of dependency is more important than the status of the parents’ relationship.

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Divorce Lawyer Draper Utah

Speak to an experienced Draper Utah divorce lawyer if you need sound legal advice on divorce. We can help you with temporary orders, child support, child custody, alimony, property division, mediation, negotiations, real estate, and much much more. Divorce law has come a long way since the time the first settlors setup their colonies in the United States.

On May 3, 1930, a large advertisement for Robert Z. Leonard’s film The Divorcee asked the readers of the Washington Post, “Has Love a Chance in Today’s Hot Pursuit of Pleasure?” Loosely based on Ursula Parrott’s 1929 novel Ex-Wife, the film starred Norma Shearer, who won an Oscar for her portrayal of the title character. From the opening scene in which Jerry, played by Shearer, boldly insists that she and Ted (Chester Morris) get married and “make a go of it” as equals, the filmmakers signaled that Shearer’s character was a quintessential “new woman,” committed to a form of female equality and independence defined by male standards. Jerry’s determination on this point is so strong, in fact, that upon discovering Ted’s affair with another woman three years into their marriage, she promptly retaliates by having an extramarital sexual encounter of her own. Ted, after learning of her infidelity, demands a divorce. Jerry plainly has overestimated the extent of her equality—a sentiment echoed in the advertisement when it teased: “Her sin was no greater than his—but she was a woman!”

Once again single, Jerry vows to enjoy her freedom and to keep her bed open to all men except for her ex-husband. She quickly, however, becomes dissatisfied and physically drained by her new life of sexual adventure. Escape presents itself in the form of a married friend named Paul (Conrad Nagel), who proposes to divorce his wife Dorothy (Judith Wood) so that he and Jerry can begin a new life together. Indeed, Dorothy is Jerry’s counterpoint throughout the film. Whereas Jerry is beautiful, Dorothy has been tragically disfigured in a car accident on the night of Jerry and Ted’s engagement. Jerry and Ted married for love, but Paul, who was heavily intoxicated when the accident occurred, married Dorothy only out of guilt. While Jerry accedes to Ted’s insistence of a divorce, Dorothy refuses to concede marital defeat and will not give Paul the divorce he so desperately desires. Comparing herself to Dorothy, Jerry realizes the many ways that she has wronged her own union with Ted. Jerry thus arrives, as one reviewer explained, at “the realization that her own marriage has been a failure because she has not had the same determination [as Dorothy] to see it through.” She resolves to find Ted, and the two have an emotional reunion in which they promise to make their new marriage a success.

By the conclusion of The Divorcée, Jerry—and by extension, the audience—have learned several lessons. First, Jerry’s desire for marital equality is foolish and unrealistic. The film does not criticize a sex-based double standard; rather, its message is that in trying to emulate men, women can lose sight of what is truly important: love and marriage. The pitiful Dorothy is the true female center of the film—she is not beautiful, but she appreciates the value of being married and is willing to fight for Paul. Moreover, the film says, sexual freedom does not ensure happiness, especially for women. Prior to their mutual transgressions, Jerry and Ted plainly enjoy a fulfilling sexual relationship. Jerry’s life as a wanton divorcée, however, is unsatisfying, and only a chance encounter with Paul prevents her from becoming a hardened seductress. Finally, while divorce is sometimes a necessity, it is also frequently the result of easily avoided misunderstandings. Only in reunification—a theme that understandably became a popular Hollywood ending—can Jerry and Ted rediscover their former happiness and lead constructive lives.

The Divorcée quickly became one of the “stand-out hits of the early summer season” of 1930, and popular demand extended its run throughout the nation. The media’s descriptions of the film—press coverage alternately described it as “a chapter out of modern life,” “a Metro-Goldwyn-Mayer production dealing with a great social problem,” and “the most sophisticated treatment of the question of divorce”—highlighted its varied appeal to audiences. By 1930 divorce had indeed become a reality of everyday American life. At the same time, however, many Americans were deeply anxious about what the escalating divorce rate meant for the family, women, and the very future of the nation. Such fears were fanned by an emergent group of experts who spent the first several decades of the twentieth century identifying a “crisis” in American marriage. These self-appointed experts, some from within the academy and some with little or no formal training in sociology or related fields, came from different parts of the political and ideological spectrum. They agreed, however, that marriage (particularly for the white middle class) was in a period of crucial transition and that married couples could not handle this transition effectively on their own. The general belief that marriage was in trouble was hardly new. Social critics and clergyman, in fact, had been decrying a “marriage problem” for most of the nation’s history. But these early critics had focused their efforts on convincing the American public of the indissolubility of the marital union and, if this former effort failed, of the need for uniform divorce laws in order to prevent most divorces. By the 1920s, however, this debate had grown increasingly stale and the arguments ineffective. The ostracism that had once accompanied the decision to divorce had subsided, and the voices of experts began to supplement, and in many cases replace, those of religious authorities in the national conversation about marriage in the United States.

As the nineteenth-century understanding of marriage as a duty faded, experts worked to convince Americans to take an active interest in the health of their marriages. They focused much of their attention on women, the traditional guardians of the home and the individuals deemed primarily responsible for the continuing changes in family life. Experts believed that if marriage was going to be a “companionate” venture—a relationship based on love and satisfying sexual relations—divorce was an important safety valve for husbands and wives who were trapped in loveless unions. They hoped, however, that by studying marriage in an objective manner, they could develop strategies that would slow the rising divorce rate and, more important, improve the general quality of American marriages. To this end, experts launched research studies intended to quantify marital success and taught marriage courses at universities. Some even began to experiment with a European technique known as “marriage counseling,” anticipating that they could prevent both ill-advised unions and unnecessary marital breakups. These efforts, in turn, laid the groundwork for a new understanding of what it meant to be married in the United States.

The nineteenth-century idealization of married, romantic love was a key ideological origin of this transition. Stereotypes of Victorian prudery aside, many American men and women—especially those from more privileged economic backgrounds—clearly expected to have intimate, loving relationships with their chosen mates. During courtship, they exchanged impassioned letters and expressed hopes that their fervent feelings would not subside after marriage. Once married, they expected to place their obligations to one another and to their growing families above those to their extended families and their civic responsibilities. Nineteenth-century Americans, therefore, gradually began to view marriage as a central life experience from which they could derive happiness and forge satisfying personal bonds. This ideal, of course, was often difficult to achieve. The Victorian belief in the innate differences between men and women, in particular, impeded the full realization of marital intimacy and romance. Many husbands and wives, in turn, struggled to share common experiences and interests with their spouses.

Nineteenth-century marriage advisers (primarily ministers and physicians) nevertheless regarded this new emphasis on love with a sense of trepidation. One root of their concern was the fact that many nineteenth-century Americans believed love to be an uncontrollable emotion. While they considered it to be a prerequisite for marriage, they did not necessarily believe that all love was eternal. If marital love was lost, no prescribed action could recapture the feeling. Critics, therefore, tried to inject a more practical view of marriage into discussions of the institution. They argued that love was a choice and that young married couples could take concrete steps to ensure that their unions remained happy. In print, advisers reminded their readers that if these efforts failed, their marriage vows remained binding. It was desirable, in other words, to be content—rather than miserable— while fulfilling ones’ duties. When nineteenth-century marriage advisers pointedly rejected the possibility of divorce, however, they betrayed a fear that not all Americans understood the sanctity of their marriage vows. This concern was not necessarily misplaced. Divorce, in a very limited form, had been available in the United States as early as the colonial era and spread in the years following the American Revolution. No sooner, it seemed, did Americans create a rationale for dissolving the bonds of empire than they set about creating rules for dissolving the bonds of matrimony. While the two acts—dissolution of empire and dissolution of marriage— existed on vastly different scales, the language used by the patriots and lawmakers to justify both was strikingly similar. Furthermore, the legitimization of divorce beyond the very strict rules of English common law helped the American legal system to sever its dependence on the English model. The theoretical legitimization of divorce as a means of ending a “tyrannical” (or sexually promiscuous) union, in other words, was ingrained in a distinctly American legal system from its onset.

The mere legality of divorce, however, did not ensure that divorce was widely available or publicly condoned after the nation’s founding. Until well into the twentieth century, couples could not divorce legally by mutual consent. While divorce laws varied widely from state to state, “fault” divorce always required that one spouse prove that the other was guilty of adultery, desertion, or some other serious failing. Until the mid-nineteenth century, an aggrieved spouse in many states had to petition his or her state legislature in the hopes of obtaining a divorce decree. Only as the number of petitions proliferated did legislators begin to move divorce cases into the courts.

The nation’s slowly rising divorce rate went largely unnoticed until the 1850s, when it became a rallying point for social critics who saw the rate as irrefutable evidence of a creeping moral decay in American life. In the 1870s and 1880s, many state legislatures made their divorce laws more stringent in (unsuccessful) attempts to decrease the number of couples eligible for divorce. Their efforts became even more urgent once a Department of Labor study in the late 1880s confirmed that the United States led the world in divorce. Interestingly, the conservative opposition to divorce rarely called for its prohibition. The potential for chaos if couples resorted to extralegal means to end their marital unions, paired with the laws’ origins in the Revolution, ensured that calls for an outright ban were muted. Plus, conservatives did not have a ready alternative to divorce for unions in which spouses flouted moral convention by committing adultery or violently assaulting their partners. The common trope of the victimized wife seeking a divorce as a last resort was too powerful an image for divorce conservatives to assail. Instead, they fought unsuccessfully for the passage of a federal divorce law that would supersede the lax laws of so-called divorce havens such as Indiana, South Dakota, and, later, Nevada.

Some men and women in the nineteenth century did support relaxed divorce laws, but their views could hardly be classified as prodivorce. Several women’s rights advocates, notably Elizabeth Cady Stanton, were in favor of divorce because it gave women a modicum of control in the face of an otherwise patriarchal institution. This stance proved divisive, however, as many other activists believed that divorce hurt women by leaving them without financial support. Other divorce supporters asserted that the availability of divorce allowed for better marriages. They pleaded in its favor, therefore, not because the availability of divorce subverted existing marriage norms, but rather because its accessibility augmented the value of marriage to American society. Their primary argument was that since the marital union was perfectible, any unions that failed to reach this high standard should be dissolved, leaving the divorced couple to pursue perfection with better-suited mates. This camp held that, at the present time, divorce was necessary but envisioned a future in which it could be eradicated. The exact details of this plan were vague, although they generally involved making it more difficult to get married. One commentator, for instance, felt that “the greatest social evil in our country is the marrying habit.”

What was truly problematic about the “marrying habit” in the minds of many Americans was not only its relationship to the rising incidence of divorce but also the perception that the wrong types of people were getting married and having children. Specifically, a significant number of the nation’s most educated women were remaining single because (among other reasons) they did not want to give up their careers—as would be expected of them—after marriage. The fight for women’s rights, as well, threatened to separate women from their traditional duties as wives and mothers. Furthermore, the birth rate among native-born, white citizens had been in a steady decline since the early nineteenth century, whereas the immigrant birth rate (considered far less desirable at the time) was quite high. President Theodore Roosevelt undoubtedly did not assuage such concerns when he popularized the idea that given present trends, native-born, white U.S. citizens were in danger of committing “race suicide.” Such rhetoric, when paired with anxieties about the divorce rate, contributed to a full-fledged sense of crisis in regard to the state of family life in the United States. Ironically, only a small percentage of Americans were getting divorced in the late nineteenth and early twentieth centuries. According to some historians there were fewer than two divorces for every thousand marriages in 1870. Certainly, many other couples created their own extralegal marital “exits,” prompted either by relationship woes or other necessity. The evidence nevertheless suggests that most Americans’ motivations for divorcing were hardly frivolous. Court records, for example, indicate that husbands and wives only sought to end their unions in extreme circumstances, such as when an offending spouse had long since disappeared, failed to provide basic necessities, or had committed adultery.

While many divorcing men and women also knew what the courts needed to hear in order to decide in their favor and may well have tailored their cases to fit such expectations, the low divorce rate nevertheless points to the serious personal and social consequences that accompanied the decision to divorce in Victorian America. At the time, after all, “evil” was the word most frequently paired with “divorce” in the popular press and in religious and legal circles. Most popular fiction, in turn, portrayed divorce as shameful and emphasized its harmful effects on individuals and society at large. The deleterious consequences of divorce were particularly evident for women. For wives without independent financial means, the infrequency of alimony allocations meant that divorce could lead to reduced circumstances or even destitution. Plus, divorce clearly represented a grave failure for any woman who embraced a Victorian identity as the moral guardian of the home, especially if her husband had succumbed to temptation and committed adultery. Many Americans believed divorced men and women to be morally suspect, and the divorced faced an uncertain social future based on their decision to end a marriage, no matter what had motivated them to do so.

The contemporary meaning of marriage is no easier to pin down and ascertain if we look at it from a societal, rather than an individual or legal, perspective. It is true that there are more public justifications for marriage from society, but marriage also has multiple potential meanings to the society that constructs and contains it. In fact, the express, explicit reasons for marriage from society’s perspective have not changed all that much over time. Some are mundane, such as the need for a certain formal record keeping and for the assignment of responsibilities and rights among persons (e.g., to facilitate property transfers at death or identify persons responsible for payment of household debts).

There are some benefits for society expressed through its interest in marriage in regard to public health. The application for a marriage license can also be the occasion for mandatory health screening or counseling on genetics. It can be used for social engineering purposes, such as to supply information on the importance of marriage or to educate couples about the purported negative impact on their children, should they have any, from any future decision to separate and divorce.

The American marital entity has an interesting lineage as a legal category. It is directly tied to one religious set of concepts and beliefs. Looking back into its legal history, we see that marriage was not created de novo as an American institution. As a legal relationship, its content and terms were drawn from British institutions that had evolved rules exemplifying rigid relationships.

In England there was a direct historic connection between the state religion and the legal treatment of intimate relationships. Marriage was a sacrament administered by the church and subject to its rules. Under the common-law system in effect in England until fairly recently (as legal institutions go), issues concerning the creation and dissolution of marriage and other aspects of family formation were left to the ecclesiastical courts. It was not until the passage of the Matrimonial Causes Act of 1857 that jurisdiction over marriage and divorce was transferred to civil courts. Consistent with the precepts of their religious approach, these courts viewed marriage as a lifelong commitment. An annulment or, failing that, desertion, was virtually the only route out of an unhappy union. The Church of England’s ecclesiastical courts could grant a divorce “from bed and board,” which allowed couples to live apart but not remarry. Divorce was theoretically available, but only through a special act of Parliament, and between 1800 and 1836, an average of three such bills of divorce were granted each year. Generally, access to divorce was limited until the late twentieth century. This view of the presumed permanence of marriage was also evident in colonial America, where divorce could be granted by a secular judiciary, but this rarely happened. In fact, prior to the mid-twentieth century in the United States, judicial divorce although increasingly more common over time than in the colonial period, was available only for “cause.” “Cause” could include adultery (in New York this was the only cause that justified divorce in 1787), as well as “impotence, adultery, intolerable severity, three years’ willful desertion, and long absence with presumption of death” (Vermont in 1798) and “gross misbehavior and wickedness in either of the parties, repugnant to and in violation of the marriage covenant”. Today in Utah you can seek a divorce on various grounds including adultery, impotence and desertion. Speak to an experienced Draper Utah divorce lawyer to know the various under which you can seek a divorce from your spouse.

An “innocent” spouse could ask the state to sever the marital tie when she or he was successful in demonstrating the “fault” of her or his mate. Fault grounds indicated there had been some egregious offense to the very marital union. States such as New York at that time permitted divorce only for very serious offenses that were considered to undermine the nature of the marital connection, such as adultery. Other states considered the amorphous category of “cruelty” to be a sufficient basis for dissolution. Colonial divorce laws varied considerably by region, with the northeastern states tending to be slightly more liberal than their southern neighbors. In the United States there was no established state religion, but the relationship between religious perceptions and beliefs about marriage and the construction of state principles regarding that connection were still evident, if attenuated. The individual states incorporated common-law concepts and definitions from the religiously shaped English rules into their laws governing family. American judges tracked the religious rhetoric of their English counterparts when considering issues involving the family. Divine laws governed family relationships, setting out the natural order for the individuals who entered them. The content of the marital relationship was also divinely structured. In what has become one of the most famous concurrences in the American legal tradition, in the 1873 Supreme Court case of Bradwell v. Illinois, Justice Bradley made what is still considered the classic statement regarding the common-law perception of the divinely determined distinct roles of husbands and wives. The organization of the traditional family in the British and American legal tradition was also patriarchal, with the husband—“head” of the family—owed obedience and domestic and sexual services from his wife. In return, he was obligated to support her and their children. The husband’s role conferred rights as well as responsibilities, including the right to punish family members. Because he bore responsibility for their actions, a husband had the right to reasonably chastise both wife and children. His support obligations also gave him a corresponding right to the earnings of his wife and children, and to control over their property.

Further, the view of marriage expressed by Justice Bradley and the divinely ordained respective positions of the spouses also limited the expectations and opportunities for married women in the larger society. The marital family’s hierarchically organized and well-defined gender roles placed the spouses in different spheres. Women, excluded from many of the public aspects of life, were perceived as appropriately dependent. As the Bradley concurrence in Bradwell expressed, their true calling was considered to be the home and family.

This ordering of domestic life was intuitive—a response to the natural dependency of women. Common law imposed disabilities on women that supported this ordering of the world. Married women were not able to own property or make contracts. In some instances they could not even be held responsible for their own torts or crimes. Their husbands, perceived as controlling them absolutely, were charged instead.

The common law expressed a structure in which the distinct specializations of the spouses complemented each other: the wage earner and the housewife; the protector and the protected; the independent and the dependent. Each spouse needed his or her complement in order to attain and maintain a whole, complete family entity, one that provided for all its members’ needs. This specialization, bringing together the head and the heart of the family in the form of husband and wife, allowed the marital family to function in a self-sufficient manner, providing both economic and domestic resources to the unit.

This unequal, if complementary, positioning of men and women within the common-law family became problematic for women when divorce became more prevalent under no-fault statutes. These statutes changed a fundamental aspect of marriage. Marriage in its common-law manifestation was considered a lifelong commitment, but no-fault divorces ushered in a revolution in our way of thinking about the permanence of the relationship of marriage. No-fault meant much easier access to divorce. In many states divorce became available on unilateral demand of one spouse even over the objection of the other that the relationship could be salvaged. Men who wanted to be free of their “faultless” wives (as determined under the previous fault divorce statutes) no longer had to bargain with those wives and buy their complicity in the divorce process through concession of property or other economic incentives.

Initiated by both wives and husbands, no-fault opened the divorce floodgate and exposed the economic vulnerability of the common-law assignment of ownership of all wages and property to the wage earner. Wives were not considered entitled to a share of property accumulated during the marriage, since they did not earn the money to buy it and typically title was in the husband’s name. As a result, women found themselves and their children destitute at divorce.

The discouragement of married women from participation in the workplace and investment in a career also had more general negative economic implications. After a divorce, women found that they had to work in the marketplace as well as in the home, yet the old vision of marriage had discouraged them from honing the skills they needed to do so. All this has changed, of course. The no-fault revolution coincided with another revolution in the way we understand the world—the gender equality movement, which ushered in massive changes in all phases of life, including marriage.

No Fault Divorce In Draper Utah

The move to no-fault divorce might have altered our view of marriage, but the gender equality revolution altered the way women perceive their societal, nonfamilial roles. It seems hard to believe that it was less than a century ago that women won important political and civil rights, such as the vote, which was achieved in 1920 with the passage of the Nineteenth Amendment. Even after women achieved the right to vote, they were still excluded from service on juries. Although the first women were summoned to jury service in 1870, as a rule, women were systematically denied or exempted from jury service for the next century, usually for reasons that were considered “benign” and “practical”. It was not until 1994, in J.E.B. v. T.B., that the Supreme Court declared that peremptory challenges based on sex violate the equal protection clause of the Fourteenth Amendment. Until recently, the common-law rule was that a woman’s domicile (essentially her legal place of residence) was always the same as her husband’s. This caused difficulty for many married women, as a person’s domicile is used in determining numerous legal entitlements, categories, and qualifications. Because a woman’s legal identity had traditionally been merged with that of her husband, her domicile was assigned based on her husband’s place of residence, and a woman had no control over this determination. As divorce laws changed and women’s destinies were less tied to the institution of marriage, the inappropriateness of this situation became more obvious. The common-law rule began to change in the 1970s, and the American Law Institute finally ratified this change in 1988.

Prenuptial Agreements

Prenuptial agreements have come to enjoy a presumption of validity, as long as they were made voluntarily and with full disclosure of financial information. Some courts still maintain the additional requirement that an agreement be substantively “fair” to both parties. Even while they do so, recognition is typically given to the changes in gender expectations. If you are planning a divorce and have a prenuptial agreement in place, consult with an experienced Draper Utah divorce law. The lawyer will review your prenuptial agreement and advise you on whether the agreement will be held valid by the court.

Child Custody And Child Support

The past few decades have witnessed a dramatic increase in the divorce rate in the United States and elsewhere, a phenomenon that reflects and influences changing social attitudes toward marriage and the family. When offspring are involved, the divorce process becomes further complicated by considerations over custody and visitation rights. And when the parents themselves cannot resolve these issues, the courts are faced with the difficult task of making a custody decision.

First, despite important differences in the amount of time they spend with their infants and young children, both fathers and mothers are significant figures in the infant’s world from a very early age. By the end of the first year, infants recognize both parents and prefer them to unfamiliar adults. By this time and increasingly during the second year, infants respond differently to each parent, reflecting the development of a rudimentary appreciation of each parent’s unique role in their world. The research indicates that there are more similarities than differences in infant responsiveness to fathers and mothers: They protest separation from either parent, delight in being reunited with them, and play comfortably in the presence of either father or mother. By all accounts, it is apparent that infants develop emotionally salient attachment relationships with each parent by the end of the first year. In short, both mother and father are “psychological parents” to their young infants, even when the father does not assume major caregiving responsibilities. There is every reason to assume that the psychological salience of each parent persists as the child grows older.

Second, even though both parents are important figures in the infant’s world, mothers and fathers differ significantly in their caretaking roles and responsibilities in most homes. Mothers typically assume basic caretaking tasks such as feeding, cleaning, dressing, soothing of distress, and preventative protection from harm. When they play with their babies, they use low-key verbally-oriented and toy-mediated games. In contrast, fathers are typically much less involved in routine caretaking tasks. Rather, they spend a greater proportion of their time engaged in play–specifically, a vigorous rough-and-tumble, physically stimulating kind of play.

The adjudication of child custody disputes raises important and interesting questions, among them the role of fathers as caregivers. For many years, courts have assumed a preference for the mother, contending that a mother’s nurturance and love constitute irreplaceable components of early socio-personality development, particularly during the “tender years.” More recently, however, judges have been using a more egalitarian “best interests of the child” guideline, in which mother and father can compete on a more equal footing for the custody of offspring. Yet this new guideline is a mixed blessing. Although it opens the door to fathers, its conceptual ambiguity permits a wider latitude of subjective judgment on the part of judges, which often results in an implicit maternal preference. The question of what are the child’s “best interests,” and how these may be served by a custody decision, is crucial if this decision-rule is to play a useful role in the custody adjudication process.

In hearing a custody dispute, a judge is faced with an unusual and difficult decision. Most legal disputes focus on the documentation of facts relevant to a case; child custody decisions entail more subjective judgments of parental caregiving competence. Furthermore, custody disputes cannot be resolved on the basis of judicial precedent. Rather, they must be addressed on a case-by-case basis, taking into consideration the unique history and circumstances of the family in question. The judge’s decision-making is further complicated by the predictive nature of the custody award. That is, he or she must consider the long-term ramifications of the decision, including the future economic and living conditions of each parent, the developmental needs of the child, and the potential availability of extrafamilial support systems. Finally, custody decisions rely heavily upon a judge’s discretionary powers in applying legislative guidelines to the particular family in question.

To be sure, most parents who divorce can agree on custody of the children without seeking judicial help. Despite the dramatic increase in the rate of divorce over the past two decades and the broadening of legislative guidelines to put parents on a more equal footing in seeking custody, fewer than 15% of the couples who divorce will proceed with a fully contested custody battle. And, of course, the overwhelming majority of custody awards are to the mother: Fewer than 10% of divorce decrees award children to the father. In many cases, fathers who receive custody do so with the consent of the noncustodial mother.

But although the proportion of disputed custody cases seems to be stable, the absolute number of disputes is increasing sharply due to the rising divorce rate. Coupled with the gradual changes in parental roles evoked, in part, by the increasing number of working mothers, it is reasonable to expect that the number of divorce petitions in which both parents want custody will continue to increase in the years to come. Therefore, it is important to clarify the guidelines by which judges resolve these disputes. The legislative guideline that currently prevails in most states–that is, awarding custody according to the “best interests of the child”–is historically the least explicit. Interestingly, English legal tradition long asserted a paternal preference, reflecting a time in which offspring were regarded as heirs to privilege and wealth and as parental property. Thus the father was viewed as the primary guardian of his legitimate children and, in the event of a dissolution of the marital bond, he assumed exclusive custodial rights. With the changes in social structure wrought by the Industrial Revolution and changes in social philosophy provoked by writers like Locke and Rousseau, this common law assumption gradually broke down. Instead, by the 19th century, both English and American law put the wife on an equal footing with her husband: Both were to receive equal consideration in a custody decision. In practice, however, this usually resulted in an implicit maternal preference, because custody decisions were based on evaluations of parental fitness and wives, as the customary initiators of divorce action, were in a better position to argue against their husbands. Concurrently, an explicit maternal preference when the children were in their “tender years” (generally speaking, under the age of seven) helped to consolidate this implicit bias for the mother in the courts. In short, changing judicial guidelines were reflecting changing social values. Childhood was increasingly viewed as a period of nurturance and education, and mothers typically assumed a major role for both. Early in the 20th century the maternal presumption became consolidated in judicial decision-making, sometimes by explicit statute but more often in the form of case law.

Jurists assumed that, except in instances when the mother was clearly unfit, it was consistently best for the child to benefit from the love and nurturance provided by the mother. They were supported in this assumption by contemporary psychoanalytic theory, which stressed the unique role of a mother’s love to early psychological development.

More recently, however, the maternal presumption has been increasingly questioned in favor of a more egalitarian guideline. Much of the impetus for this reconsideration has come from social critics who regard the maternal preference as inherently sexist and a perpetuation of traditional gender roles. The dramatic rise in the number of working mothers in recent years and the concurrent increase in demand for infant and preschool childcare services are particularly salient manifestations of the changing American family. Thus the traditional family system in which mother is a fulltime caregiver is no longer the norm, and this has undermined the rationale for an explicit preference for mother in custody disputes. In addition, of course, there are a number of instances in which an explicit maternal presumption is clearly inappropriate, such as when the father or another person has assumed sole caregiving responsibilities, or when the mother is abusive or neglectful. Finally, many critics contend that the maternal presumption focused attention on judicial evaluations of parental fitness rather than on child-centered concerns. Thus the purpose of the best interests guideline is to encourage an appraisal of the custody dispute in light of the contributions (actual and potential) of each parent to the child’s present and future needs.

Problems with the Best Interests Of The Child Guideline

This legislative intent may be significantly undermined, however, by the ambiguity concerning how the child’s “best interests” are to be determined. Judges are provided few explicit decision-rules to determine what a child’s best interests are, much less rules that take into account a child’s changing developmental needs. Even when statutes provide broad guidelines defining the child’s best interests, these guidelines are seldom very explicit and judges are offered no guidance concerning which of these interests are most important in determining custody. This leaves judges broad discretion in defining these interests, with the result that custody awards can be determined on the basis of highly subjective criteria that may vary widely on a case-by-case basis. Alternatively, many judges simply adhere to a maternal presumption despite the changed mandate. In short, one of the greatest problems with the best interests guideline is the current lack of certainty concerning how this expression should be interpreted. A fundamental question, for example, concerns which of the child’s many “interests” should predominate in a judge’s deliberations over a custody award. Fundamentally, of course, children require the basic necessities that promote physical well being: adequate nourishment, a warm, safe home environment, sufficient health care, clothing, and an interpersonal environment that is not overtly abusive or oppressive. Beyond these basic necessities, however, there is considerable controversy concerning which of the child’s other needs merit primary consideration. Is it important that the child be with the parent who has provided the most care in the past (i.e., ensure continuity of care)? What of the child’s future educational or religious training? Should jurists be concerned with the child’s “character development”? Is continuity in living circumstances important? Should the child be with the same-sex parent? To put it simply, should the child’s best interests be strictly construed to mean only the basic requirements of adequate caregiving, or should the courts be more interested in the child’s optimal development?

There is no easy answer to this question, and opinions vary widely. Some legal scholars advocate a more limited interpretation of the child’s interests in order to curtail the court’s discretionary powers in deciding child placement cases (e.g., custody, foster care, etc.). On the other hand, some experts argue that “psychological parenting” should be the primary consideration in determining child placement; that is, to whom has the child developed a lasting emotional bond? There is, in short, no clear consensus concerning what constitute the child’s primary interests in determining a custody award.

Assuming that the best interests guideline is meant to include factors other than physical well being alone, a second question concerns the limits of this construction. That is, how do we evaluate the parental caregiving practices that promote the child’s best interests? Is one parent’s warm but permissive approach preferable to another’s less affectionate limit-setting? Should judges prefer a custody arrangement that is likely to foster a strong traditional gender identity in the child? These and a range of similar questions surround most custody decisions and concern the implicit goals and values that underly a court’s preference for one parent over the other.

It is doubtful that there is much broad consensus within most Western societies concerning these child-rearing goals and practices. As with differences in lifestyle, parents vary greatly concerning the traits and characteristics they seek to develop in their children, and they employ a range of practices for achieving these goals. This diversity contributes to the heterogeneity of a society, in fact, and courts have traditionally hesitated to infringe upon parental freedom to raise their children as they prefer. Indeed, apart from those instances in which state intervention is mandated by manifest child abuse or neglect, greater concern has been voiced over the state’s overregulation of parental decision-making in areas such as education, religious training, and medical care. In short, society encourages a great deal of freedom and diversity in child-rearing goals and practices and, by and large, the courts have insured this freedom. In the adjudication of child custody disputes, however, judges frequently rely on subjective judgments of a parent’s caretaking style that are often based on personal values and beliefs. Sometimes these judgments concern the “moral climate” of the home. In some cases, a judgment is based on a parent’s occupational commitments, political affiliations, expectation of remarriage, or economic circumstances rather than his or her relationship with the child. In short, these judgments of caretaking often involve intuitive, usually unarticulated value judgments that are relative to the values and beliefs of the judge determining a custody settlement. These values are likely to reflect sociocultural and social class biases as well as religious beliefs and moral attitudes. Importantly, they usually entail judgments of parental fitness, with secondary regard for their actual or potential effects upon the child. Thus a second difficulty with the best interests guideline concerns judging the parental practices that contribute to a child’s best interests. In the absence of a prevailing social consensus, judges tend to use their own intuitive value judgments that may or may not reflect child-centered concerns.

It is important to note, however, that intuitive judgments of parental practices are not limited to jurists. Indeed, “expert testimony” from various sources, including psychiatric witnesses and social workers, has been criticized as being largely subjective and value based, and thus unreliable. In other words, any subjective assessment of a family is likely to result in speculative and unreliable judgments. Furthermore, this unreliability is especially likely when the family is under stress (as in a custody battle), when normal patterns of interaction are affected by emotional turmoil. Thus it is doubtful whether assessments of family interaction at the time of a custody dispute–by a judge or an “expert witness”–yield meaningful information about parent-child relationships. A third ambiguity in the best interests guideline concerns the time frame within which a child’s interests are appraised. Divorce presents parents and children with immediate and difficult adjustments. Should judges seek a custody arrangement that helps the child to negotiate these short-term transitions? Or should longer-term concerns take precedence if they conflict with more immediate needs? These, too, are questions of judgment about which legislative guidelines or judicial precedent offer little guidance.

Taken together, the major difficulty with the best interests guideline is the broad interpretational latitude permitted judges in deciding custody disputes. Disagreement exists concerning which of the child’s many interests should be included in a judge’s deliberations, how these interests are translated into judgments of parental child-rearing practices (and how these practices should be assessed), and whether short-term or long-term concerns should take precedence. These conceptual ambiguities thus delegate a good deal of discretionary power to judges, with the result that custody decisions may be based on implicit value judgments that are relative and thus inappropriate to legal decision-making. Of course, these interpretational problems are most acute when the child’s best interests are broadly construed, but to some extent they are inherent within any such inclusive formulation.

In view of this, some legal scholars have called the process of child custody adjudication “indeterminate”–that is, there are often no reliable, objective and legally satisfying ways of awarding custody to a parent according to the child’s best interests. Whereas some custody cases are always relatively easy to resolve (such as when one parent is abusive, or has abandoned the family, and the other parent has not), for the majority of cases there exist no generally accepted, easily applied decision-rules by which the child’s best interests may be determined fairly and objectively. The same case presented to two judges may be decided in very different ways. The indeterminacy of child custody adjudication also has important implications outside the courtroom. Legal guidelines usually serve as negotiating parameters by which the parties to a dispute can assess their relative chances of success in adjudication and modify their demands and expectations accordingly. Under the best interests rule, fathers and mothers are provided little information of this kind. Thus articulate and consistent custody guidelines are necessary both for the adjudication process and for the interpersonal bargaining that precedes it. What is the solution to judicial indeterminacy in custody cases? Some have suggested a return to more specific, all-encompassing legislative decision-rules (e.g., custody awarded to the mother if the child is age 5 or younger; custody awarded to the same-sex parent with older children). This would limit judicial discretion, but a proportion of disputes would certainly be resolved unfairly. Another proposal is for a greater emphasis on predivorce mediation to encourage parents to seek their own solution to the custody dispute short of a court battle. A third–and more radical–alternative is to decide custody disputes by some random process: in essence, a judicial coin-flip.

Such an approach would acknowledge the inherent inability of the court to make an objective, reliable custody award, and would prevent the noncustodial parent from feeling that he or she was judged to be a less adequate parent than the spouse with custody.

Short of these alternatives, it is clear that judicial decision-making in custody disputes entails highly idiosyncratic considerations that must be addressed on a case-by-case basis. The history of the family in question, the wishes of the child, the nature of the temporary custody arrangements, the quality and quantity of predivorce parental caregiving involvement, and prospective living conditions for the child with either parent are all considerations (to name a few) that should figure prominently in a custody award and that are likely to vary from one family to another. The important question, however, is whether there exists a valid overall framework within which these factors can be considered and by which further information may be requested and evaluated. In other words, judges and lawyers require some general understanding of the nature of family functioning in intact and divorced homes in order to properly interpret and weigh these considerations relevant to the child’s best interests. Operating within such a framework, jurists may be less likely to base custody decisions upon idiosyncratic and value-laden considerations. It is in providing such an overall knowledge base that psychological research may have a limited but important role in the adjudication of child custody disputes. This is particularly true concerning the role of fathers as caregivers, which is the topic of this review.

One very important factor differentiating mother-child from father-child relationships is the quantity of caretaking. In traditional homes, of course, the mother is usually relegated childcare as well as other domestic chores while fathers spend most of their day away from the home. With the reappraisal of gender roles during the last decade, one might anticipate a softening of these traditional childcare assignments within the home. Several recent studies of time use suggest, however, that fathers are still largely uninvolved in routine caretaking tasks.

Taken together, these differences in the quality and contexts of mother-infant and father-infant interaction reflect a basic difference in each parent’s role vis-à- vis the baby. In most instances, the mother is the infant’s primary caretaker, even when she is employed outside of the home. That is, she more typically provides for the baby’s basic needs–feeding, bathing, diaper-changing, soothing of distress, preventative protection from harm, and similar ministrations–as well as being a salient social partner in low-key play. In contrast, the father’s typical role as a secondary caretaker is less focused around specific caregiving activities and more focused on vigorous, physically stimulating play with the baby. Play is thus a more basic interactive context for infants with their fathers than with their mothers; in addition, different kinds of play activities also distinguish each parent. In short, infants begin to know and develop expectations for each parent in somewhat different social contexts.

Does this division of roles mean that fathers are less competent than mothers in basic caretaking tasks? Evidently not. If you are a father, speak to an experienced Draper Utah divorce lawyer for advice on how you can get custody of your children.

Fathers are competent and responsive caretakers, whether their competence is appraised in terms of the occurrence of certain caretaking behaviors or their responsiveness to infant cues. Similarities in mother-infant and father-infant nurturant and caretaking activities have been noted for parents in other cultures as well. Such findings are ironic in view of the strong tendency of fathers to eschew caretaking roles at home. In other words, fathers can be highly competent caretakers when called upon to do so, even though they seldom assume such responsibilities spontaneously. Instead, they spend a greater proportion of their time engaged in vigorous, physically active play with their infants.

Taken together, the research on mother-infant and father-infant relationships indicates that fathers are preferred as play partners from a relatively early age, and mothers are preferentially sought when infants are fatigued, alarmed, or stressed. As earlier indicated, the paternal preference is unsurprising in view of the contexts in which infants typically encounter their fathers and the kinds of exciting, physically active games fathers play. Infants seem to learn that fathers are fun to play with during the second year. Similarly, infants’ preferences for their mothers under stress are also unsurprising in view of the maternal caretaking role in most families. Mothers typically feed, bathe, clothe and, importantly, comfort their babies when the infants are distressed; infants seem to learn early on that their mothers are a source of soothing. Thus mothers and fathers differ importantly both in their caretaking roles and, it seems, in how they are perceived by the baby from an early age. Mothers as primary caregivers in most families spend a greater amount of time with their infant sons and daughters and assume greater responsibility for routine caretaking tasks, even when they also work outside of the home. Fathers as secondary caregivers spend less time with infants overall but devote a greater proportion of their time to physically vigorous, arousing play. These differences in parental involvement are manifested early in differences in infant responsiveness. Infants prefer their fathers as play partners and respond more positively to them in these situations. Under conditions of stress, however, they turn to mothers, reflecting different expectations for each parent that develop during the first year. In short, infants learn about their mothers and fathers in different contexts, and develop different expectations for them as a result.

Often a child can become a mere cipher in conflicts over custody. Finding the right balance between the claims of two separating partners is not easy. Judges have more commonly been willing to award custody of young children to mothers on the ‘tender-years’ principle: the idea that, because of the strong natural bond between mother and child, if young children cannot be with both parents, they are better off with their mother. So, while the case for women in the custody battle may be strong, it is increasingly recognized that men, too, have grievances to be addressed and that current law can disadvantage them in a number of ways. In the vast majority of cases, custody of children on divorce is awarded to women, and contact orders, largely made to men, are often broken. There are particular cases where court decisions are likely to strike anyone as totally unfair—a non-working wife who ends a marriage because of another liaison may well be awarded children, house, and most of the couple’s financial assets, notwithstanding her responsibility for the collapse of their joint family-building project and her lack of any financial input. She is free to introduce unofficially into the family structure another man to replace the natural father in the lives of her children. With the growth of these disadvantages has come the loss of many of the previous advantages of marriage for a man, as traditionally the best way of securing not only a steady sex life, but also status in the community, and a substantial and satisfactory personal project in which he could reasonably regard himself as a vital element.

Given these tensions, it is not difficult to see why the closing years of the twentieth century should have seen demands for a new approach to child custody based on the principle that, even if divorce can end relationships between adults, it is important to maintain the child–parent relationship. The presumption is that a continuing relationship with both parents will enable both of them to offer physical, emotional, and financial support to their children. The practical goal, then, becomes a matter of seeking to ensure reasonable contact for both parties. But ‘reasonable contact’ is an imprecise concept, varying from contact on alternate weekends to a more extensive and rigid division of time mapped out in terms of days or even hours per year. So joint or shared custody, in the sense of children’s time being relatively equally divided between parents, has become the arrangement of choice for some on the basis that it finally establishes the principle of equality and the equal legal standing of women and men. It may also be promoted from the child’s point of view, as it is, for example, in parts of the USA, where co-parenting may be advocated as a matter of a child’s rights—in this case, a right to live with either parent for some of the time. But the burden such arrangements impose on children should not be underestimated. It is often argued that disruption for children can be justified if it represents an escape from extremely difficult domestic situations. But, in general, the effects of divorce on children are poor and can be measured in terms of low educational achievement, difficult relationships with parents, especially fathers, and other emotional problems.

So all this leaves us with the fundamental question of who should care for the child when a couple splits up. For this we need to understand the judgement King Solomon passed. There is, though, more to the story of Solomon’s judgement than this. Faced with the equal balance of the two rival claims, Solomon intends, or at least pretends to intend, to take a sword and split the child in two. The false claimant is ready to accept this. But the true mother calls for an end to the legal battle and its dire outcome, saying that she is ready for the sake of her child to allow it to go to the other claimant. Solomon gives the child to her for, by her willingness to sacrifice her own interest, she has unintentionally demonstrated the truth of her claim.

In many ways, equal joint custody resembles the solution proposed by King Solomon—the child must live a split life between two homes, with little time or opportunity to create a place for itself in either, and much of its potential time with peers taken up by outings with a displaced parent. In these circumstances, it may be that some parents will express their love for the child by relinquishing maximum rights, asking only reasonable and modest access, in order to give the child a life of its own.

Cases involving extreme violence represent, of course, the outer limits of the way in which custody can serve the needs or preferences of parents and ignore the vulnerability of children. But, even where violence is not a factor, contact and residence rulings can be a way, deliberate or not, for one parent to exercise control over the other, making it impossible for the other parent to gather up the threads and start again, free from harassment and disruption. There are no easy answers to post-separation arrangements looked at from the point of view of the children themselves. It would be better if parents could recognize this and acknowledge that their own decision to split up means that, as far as their children are concerned, their security, home life and frame of reference for living their lives has been unpicked. If it is difficult to secure fairness for both parents, it is even more difficult.

Reconstituted Families

In practice, separations often bring into already complex situations new people, both adults and children, who have their own needs and perspectives. For, while the initial situation may be focused on the problem of how two individuals are to share their children’s lives between them, in practice one or both partners may bring someone else into the picture, posing a challenge of adjustment both for the adults and for their children. As far as the adults are concerned, it may be difficult to accept that their children are living with the person who has replaced them in their partner’s life. It will be difficult if the new mother or father is not caring properly for the children, but in some ways just as difficult if they are doing so successfully. A mother, particularly if she is not responsible for the breach, may find it very hard to accept that the woman who is responsible for it has taken over her role and formed a bond with her children. The same applies to fathers. A man, too, may find it hard to accept the reality of his children living with the man who has taken over his own role.

Custody and access are, of course, intended to protect parents’ relationships with their children and also to secure the best interests of those children. But these are difficult goals to reconcile. Even in the best of cases, children do not like to be asked to choose between their parents. Listening to the child’s voice is a worthwhile step, but no one should be deceived into thinking that that is a universal panacea. Like the apocryphal traveller whose request for advice evokes the response ‘I would not start from here’, in most cases the child does not want the split in the first place. What children most need and most want is what normal family life provides: a chance to build their own lives and relationships with their peers, with their parents in the background for support and comfort, and preferably not as judicially ordered companions for parent and child outings.

What children want, sadly they will not always get, and sometimes society itself will pay the price. But it is worth adults at least being clear about what they are doing and not deluding themselves with anodyne suggestions that their children will be happier, or at least benefit, when their aspirations for simple childhood constants are shattered and exchanged for a new life that includes mobility, fluctuating relationships, new ‘siblings’ to negotiate with, and new parental whims to accommodate. The old mantra ‘I am only staying with you for the sake of the children’ may often have been the simple truth in the past and in many cases could have been the better choice. From the child’s point of view, it may still be so. For, on the whole, children like families—the family is a child-friendly institution and only secondarily there to keep adults happy.

Child Abuse

If your spouse is abusing your child, you should seek custody of your child. Proving child abuse is difficult as the child may be scared to speak out against the abusive parent. You will require the services of an expert witness.

Although no uniform theory is available to provide consistent answers to disputed issues between conflicting parties, there should be a common goal for all professionals acting as expert witnesses. That is, all theories and expert witnesses should work toward the best interest of the child. However, different professionals may disagree as to what is in a child’s best interest. Under this premise, lawyers need to know the fundamental similarities and differences of all theories and models of child abuse and neglect such that expert witnesses can be called upon who will select the most accurate and impartial view of the child’s best interest. In short, the knowledge provided by the expert witness should serve the functions of verification, confirmation, conversion, and education in order to increase maximal judicial validity of evidence presented in court.

Responsibilities Of The Lawyer In Using Expert Witnesses

In legal proceedings dealing with victimization, the court may require concrete and comprehensive information from experts in order to establish the evidence of responsibility, causality, liability, and damages. Therefore, the lawyer involved will need to have accurate knowledge of the (1) perpetrator (e.g., intention), (2) victim (e.g. impact), (3) victimization processes (e.g., form of maltreatment), and (4) social and legal dispositions (e.g., removal of the victimized child from the abusive environment).

Resolution for these issues relies heavily on subjective explanations and interpretations of circumstantial evidence and facts. Because of the subjective nature in explanations or inferences, the experts used by the legal profession will thus generate possibly controversial and incompatible opinions about various objective phenomena of child abuse and neglect. Therefore, in dealing with the diverse theoretical backgrounds of the experts, lawyers need to have a clear understanding of evaluation criteria for assessment of expert testimony. That is, each expert should and can be characterized in terms of his/her theorization of child abuse and neglect. Since clinical and psychological testimonies are frequently based on some theories that may have no empirically verified foundations, lawyers handling of child abuse and neglect cases, with or without the assistance of other professions, should always evaluate the admissibility of expert testimony in reference to multidisciplinary theories and knowledge. Therefore, the judicial validity of future expert testimony will rely heavily on the competency and willingness of lawyers in testing its admissibility in the areas of necessity, reliability, validity, understandability, and importance.

Above all, it relies on the ability of lawyers to identify different origins of various theoretical foundations used and to differentiate their feasibilities for application to the legal issues involved.

Child Support

In regard to the state maintaining a primary interest in the dependency component of the parent-child relationship, the cases and legislation are very clear. The economics of the tie are for state determination. Husband and wife cannot negotiate child custody and support free from judicial scrutiny and approval. The state retains an interest in these arrangements and the right to assess and alter any settlement the spouses may reach upon divorce even to modify existing arrangements in the best interests of the child.

Economic or dependency issues concerning the ongoing needs of children that are addressed in the divorce context can be compared with the nonmarital situation. Historically, marriage defined the status of children in relation to their parents and the claims they could make upon or through them. The presence or absence of marriage determined which children were labeled “legitimate” or “illegitimate” and, thus, either granted or denied benefits accrued by their parents under state insurance and compensation schemes.

The U.S. Supreme Court has reduced the significance of marriage in regard to the parent-child connection. It did so first in regard to mothers when, in Levy v. Louisiana, it held that denying damages to “illegitimate” children as a result of the wrongful death of their mother is a violation of the equal protection clause of the Fourteenth Amendment. But fathers’ connection to children has also evolved so as to not require its mediation through the institution of marriage. Unmarried fathers now have rights and responsibilities for their children that were not part of the common law scheme of things. Nonmarital children are entitled to benefits historically reserved for their marital counterparts, such as parental support, workers compensation benefits, and the right to recovery in the event of a parent’s wrongful death. Such improvements recognize the reality of dependency is more important than the status of the parents’ relationship.

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Divorce Lawyer Draper Utah

Speak to an experienced Draper Utah divorce lawyer if you need sound legal advice on divorce. We can help you with temporary orders, child support, child custody, alimony, property division, mediation, negotiations, real estate, and much much more. Divorce law has come a long way since the time the first settlors setup their colonies in the United States.

On May 3, 1930, a large advertisement for Robert Z. Leonard’s film The Divorcee asked the readers of the Washington Post, “Has Love a Chance in Today’s Hot Pursuit of Pleasure?” Loosely based on Ursula Parrott’s 1929 novel Ex-Wife, the film starred Norma Shearer, who won an Oscar for her portrayal of the title character. From the opening scene in which Jerry, played by Shearer, boldly insists that she and Ted (Chester Morris) get married and “make a go of it” as equals, the filmmakers signaled that Shearer’s character was a quintessential “new woman,” committed to a form of female equality and independence defined by male standards. Jerry’s determination on this point is so strong, in fact, that upon discovering Ted’s affair with another woman three years into their marriage, she promptly retaliates by having an extramarital sexual encounter of her own. Ted, after learning of her infidelity, demands a divorce. Jerry plainly has overestimated the extent of her equality—a sentiment echoed in the advertisement when it teased: “Her sin was no greater than his—but she was a woman!”

Once again single, Jerry vows to enjoy her freedom and to keep her bed open to all men except for her ex-husband. She quickly, however, becomes dissatisfied and physically drained by her new life of sexual adventure. Escape presents itself in the form of a married friend named Paul (Conrad Nagel), who proposes to divorce his wife Dorothy (Judith Wood) so that he and Jerry can begin a new life together. Indeed, Dorothy is Jerry’s counterpoint throughout the film. Whereas Jerry is beautiful, Dorothy has been tragically disfigured in a car accident on the night of Jerry and Ted’s engagement. Jerry and Ted married for love, but Paul, who was heavily intoxicated when the accident occurred, married Dorothy only out of guilt. While Jerry accedes to Ted’s insistence of a divorce, Dorothy refuses to concede marital defeat and will not give Paul the divorce he so desperately desires. Comparing herself to Dorothy, Jerry realizes the many ways that she has wronged her own union with Ted. Jerry thus arrives, as one reviewer explained, at “the realization that her own marriage has been a failure because she has not had the same determination [as Dorothy] to see it through.” She resolves to find Ted, and the two have an emotional reunion in which they promise to make their new marriage a success.

By the conclusion of The Divorcée, Jerry—and by extension, the audience—have learned several lessons. First, Jerry’s desire for marital equality is foolish and unrealistic. The film does not criticize a sex-based double standard; rather, its message is that in trying to emulate men, women can lose sight of what is truly important: love and marriage. The pitiful Dorothy is the true female center of the film—she is not beautiful, but she appreciates the value of being married and is willing to fight for Paul. Moreover, the film says, sexual freedom does not ensure happiness, especially for women. Prior to their mutual transgressions, Jerry and Ted plainly enjoy a fulfilling sexual relationship. Jerry’s life as a wanton divorcée, however, is unsatisfying, and only a chance encounter with Paul prevents her from becoming a hardened seductress. Finally, while divorce is sometimes a necessity, it is also frequently the result of easily avoided misunderstandings. Only in reunification—a theme that understandably became a popular Hollywood ending—can Jerry and Ted rediscover their former happiness and lead constructive lives.

The Divorcée quickly became one of the “stand-out hits of the early summer season” of 1930, and popular demand extended its run throughout the nation. The media’s descriptions of the film—press coverage alternately described it as “a chapter out of modern life,” “a Metro-Goldwyn-Mayer production dealing with a great social problem,” and “the most sophisticated treatment of the question of divorce”—highlighted its varied appeal to audiences. By 1930 divorce had indeed become a reality of everyday American life. At the same time, however, many Americans were deeply anxious about what the escalating divorce rate meant for the family, women, and the very future of the nation. Such fears were fanned by an emergent group of experts who spent the first several decades of the twentieth century identifying a “crisis” in American marriage. These self-appointed experts, some from within the academy and some with little or no formal training in sociology or related fields, came from different parts of the political and ideological spectrum. They agreed, however, that marriage (particularly for the white middle class) was in a period of crucial transition and that married couples could not handle this transition effectively on their own. The general belief that marriage was in trouble was hardly new. Social critics and clergyman, in fact, had been decrying a “marriage problem” for most of the nation’s history. But these early critics had focused their efforts on convincing the American public of the indissolubility of the marital union and, if this former effort failed, of the need for uniform divorce laws in order to prevent most divorces. By the 1920s, however, this debate had grown increasingly stale and the arguments ineffective. The ostracism that had once accompanied the decision to divorce had subsided, and the voices of experts began to supplement, and in many cases replace, those of religious authorities in the national conversation about marriage in the United States.

As the nineteenth-century understanding of marriage as a duty faded, experts worked to convince Americans to take an active interest in the health of their marriages. They focused much of their attention on women, the traditional guardians of the home and the individuals deemed primarily responsible for the continuing changes in family life. Experts believed that if marriage was going to be a “companionate” venture—a relationship based on love and satisfying sexual relations—divorce was an important safety valve for husbands and wives who were trapped in loveless unions. They hoped, however, that by studying marriage in an objective manner, they could develop strategies that would slow the rising divorce rate and, more important, improve the general quality of American marriages. To this end, experts launched research studies intended to quantify marital success and taught marriage courses at universities. Some even began to experiment with a European technique known as “marriage counseling,” anticipating that they could prevent both ill-advised unions and unnecessary marital breakups. These efforts, in turn, laid the groundwork for a new understanding of what it meant to be married in the United States.

The nineteenth-century idealization of married, romantic love was a key ideological origin of this transition. Stereotypes of Victorian prudery aside, many American men and women—especially those from more privileged economic backgrounds—clearly expected to have intimate, loving relationships with their chosen mates. During courtship, they exchanged impassioned letters and expressed hopes that their fervent feelings would not subside after marriage. Once married, they expected to place their obligations to one another and to their growing families above those to their extended families and their civic responsibilities. Nineteenth-century Americans, therefore, gradually began to view marriage as a central life experience from which they could derive happiness and forge satisfying personal bonds. This ideal, of course, was often difficult to achieve. The Victorian belief in the innate differences between men and women, in particular, impeded the full realization of marital intimacy and romance. Many husbands and wives, in turn, struggled to share common experiences and interests with their spouses.

Nineteenth-century marriage advisers (primarily ministers and physicians) nevertheless regarded this new emphasis on love with a sense of trepidation. One root of their concern was the fact that many nineteenth-century Americans believed love to be an uncontrollable emotion. While they considered it to be a prerequisite for marriage, they did not necessarily believe that all love was eternal. If marital love was lost, no prescribed action could recapture the feeling. Critics, therefore, tried to inject a more practical view of marriage into discussions of the institution. They argued that love was a choice and that young married couples could take concrete steps to ensure that their unions remained happy. In print, advisers reminded their readers that if these efforts failed, their marriage vows remained binding. It was desirable, in other words, to be content—rather than miserable— while fulfilling ones’ duties. When nineteenth-century marriage advisers pointedly rejected the possibility of divorce, however, they betrayed a fear that not all Americans understood the sanctity of their marriage vows. This concern was not necessarily misplaced. Divorce, in a very limited form, had been available in the United States as early as the colonial era and spread in the years following the American Revolution. No sooner, it seemed, did Americans create a rationale for dissolving the bonds of empire than they set about creating rules for dissolving the bonds of matrimony. While the two acts—dissolution of empire and dissolution of marriage— existed on vastly different scales, the language used by the patriots and lawmakers to justify both was strikingly similar. Furthermore, the legitimization of divorce beyond the very strict rules of English common law helped the American legal system to sever its dependence on the English model. The theoretical legitimization of divorce as a means of ending a “tyrannical” (or sexually promiscuous) union, in other words, was ingrained in a distinctly American legal system from its onset.

The mere legality of divorce, however, did not ensure that divorce was widely available or publicly condoned after the nation’s founding. Until well into the twentieth century, couples could not divorce legally by mutual consent. While divorce laws varied widely from state to state, “fault” divorce always required that one spouse prove that the other was guilty of adultery, desertion, or some other serious failing. Until the mid-nineteenth century, an aggrieved spouse in many states had to petition his or her state legislature in the hopes of obtaining a divorce decree. Only as the number of petitions proliferated did legislators begin to move divorce cases into the courts.

The nation’s slowly rising divorce rate went largely unnoticed until the 1850s, when it became a rallying point for social critics who saw the rate as irrefutable evidence of a creeping moral decay in American life. In the 1870s and 1880s, many state legislatures made their divorce laws more stringent in (unsuccessful) attempts to decrease the number of couples eligible for divorce. Their efforts became even more urgent once a Department of Labor study in the late 1880s confirmed that the United States led the world in divorce. Interestingly, the conservative opposition to divorce rarely called for its prohibition. The potential for chaos if couples resorted to extralegal means to end their marital unions, paired with the laws’ origins in the Revolution, ensured that calls for an outright ban were muted. Plus, conservatives did not have a ready alternative to divorce for unions in which spouses flouted moral convention by committing adultery or violently assaulting their partners. The common trope of the victimized wife seeking a divorce as a last resort was too powerful an image for divorce conservatives to assail. Instead, they fought unsuccessfully for the passage of a federal divorce law that would supersede the lax laws of so-called divorce havens such as Indiana, South Dakota, and, later, Nevada.

Some men and women in the nineteenth century did support relaxed divorce laws, but their views could hardly be classified as prodivorce. Several women’s rights advocates, notably Elizabeth Cady Stanton, were in favor of divorce because it gave women a modicum of control in the face of an otherwise patriarchal institution. This stance proved divisive, however, as many other activists believed that divorce hurt women by leaving them without financial support. Other divorce supporters asserted that the availability of divorce allowed for better marriages. They pleaded in its favor, therefore, not because the availability of divorce subverted existing marriage norms, but rather because its accessibility augmented the value of marriage to American society. Their primary argument was that since the marital union was perfectible, any unions that failed to reach this high standard should be dissolved, leaving the divorced couple to pursue perfection with better-suited mates. This camp held that, at the present time, divorce was necessary but envisioned a future in which it could be eradicated. The exact details of this plan were vague, although they generally involved making it more difficult to get married. One commentator, for instance, felt that “the greatest social evil in our country is the marrying habit.”

What was truly problematic about the “marrying habit” in the minds of many Americans was not only its relationship to the rising incidence of divorce but also the perception that the wrong types of people were getting married and having children. Specifically, a significant number of the nation’s most educated women were remaining single because (among other reasons) they did not want to give up their careers—as would be expected of them—after marriage. The fight for women’s rights, as well, threatened to separate women from their traditional duties as wives and mothers. Furthermore, the birth rate among native-born, white citizens had been in a steady decline since the early nineteenth century, whereas the immigrant birth rate (considered far less desirable at the time) was quite high. President Theodore Roosevelt undoubtedly did not assuage such concerns when he popularized the idea that given present trends, native-born, white U.S. citizens were in danger of committing “race suicide.” Such rhetoric, when paired with anxieties about the divorce rate, contributed to a full-fledged sense of crisis in regard to the state of family life in the United States. Ironically, only a small percentage of Americans were getting divorced in the late nineteenth and early twentieth centuries. According to some historians there were fewer than two divorces for every thousand marriages in 1870. Certainly, many other couples created their own extralegal marital “exits,” prompted either by relationship woes or other necessity. The evidence nevertheless suggests that most Americans’ motivations for divorcing were hardly frivolous. Court records, for example, indicate that husbands and wives only sought to end their unions in extreme circumstances, such as when an offending spouse had long since disappeared, failed to provide basic necessities, or had committed adultery.

While many divorcing men and women also knew what the courts needed to hear in order to decide in their favor and may well have tailored their cases to fit such expectations, the low divorce rate nevertheless points to the serious personal and social consequences that accompanied the decision to divorce in Victorian America. At the time, after all, “evil” was the word most frequently paired with “divorce” in the popular press and in religious and legal circles. Most popular fiction, in turn, portrayed divorce as shameful and emphasized its harmful effects on individuals and society at large. The deleterious consequences of divorce were particularly evident for women. For wives without independent financial means, the infrequency of alimony allocations meant that divorce could lead to reduced circumstances or even destitution. Plus, divorce clearly represented a grave failure for any woman who embraced a Victorian identity as the moral guardian of the home, especially if her husband had succumbed to temptation and committed adultery. Many Americans believed divorced men and women to be morally suspect, and the divorced faced an uncertain social future based on their decision to end a marriage, no matter what had motivated them to do so.

The contemporary meaning of marriage is no easier to pin down and ascertain if we look at it from a societal, rather than an individual or legal, perspective. It is true that there are more public justifications for marriage from society, but marriage also has multiple potential meanings to the society that constructs and contains it. In fact, the express, explicit reasons for marriage from society’s perspective have not changed all that much over time. Some are mundane, such as the need for a certain formal record keeping and for the assignment of responsibilities and rights among persons (e.g., to facilitate property transfers at death or identify persons responsible for payment of household debts).

There are some benefits for society expressed through its interest in marriage in regard to public health. The application for a marriage license can also be the occasion for mandatory health screening or counseling on genetics. It can be used for social engineering purposes, such as to supply information on the importance of marriage or to educate couples about the purported negative impact on their children, should they have any, from any future decision to separate and divorce.

The American marital entity has an interesting lineage as a legal category. It is directly tied to one religious set of concepts and beliefs. Looking back into its legal history, we see that marriage was not created de novo as an American institution. As a legal relationship, its content and terms were drawn from British institutions that had evolved rules exemplifying rigid relationships.

In England there was a direct historic connection between the state religion and the legal treatment of intimate relationships. Marriage was a sacrament administered by the church and subject to its rules. Under the common-law system in effect in England until fairly recently (as legal institutions go), issues concerning the creation and dissolution of marriage and other aspects of family formation were left to the ecclesiastical courts. It was not until the passage of the Matrimonial Causes Act of 1857 that jurisdiction over marriage and divorce was transferred to civil courts. Consistent with the precepts of their religious approach, these courts viewed marriage as a lifelong commitment. An annulment or, failing that, desertion, was virtually the only route out of an unhappy union. The Church of England’s ecclesiastical courts could grant a divorce “from bed and board,” which allowed couples to live apart but not remarry. Divorce was theoretically available, but only through a special act of Parliament, and between 1800 and 1836, an average of three such bills of divorce were granted each year. Generally, access to divorce was limited until the late twentieth century. This view of the presumed permanence of marriage was also evident in colonial America, where divorce could be granted by a secular judiciary, but this rarely happened. In fact, prior to the mid-twentieth century in the United States, judicial divorce although increasingly more common over time than in the colonial period, was available only for “cause.” “Cause” could include adultery (in New York this was the only cause that justified divorce in 1787), as well as “impotence, adultery, intolerable severity, three years’ willful desertion, and long absence with presumption of death” (Vermont in 1798) and “gross misbehavior and wickedness in either of the parties, repugnant to and in violation of the marriage covenant”. Today in Utah you can seek a divorce on various grounds including adultery, impotence and desertion. Speak to an experienced Draper Utah divorce lawyer to know the various under which you can seek a divorce from your spouse.

An “innocent” spouse could ask the state to sever the marital tie when she or he was successful in demonstrating the “fault” of her or his mate. Fault grounds indicated there had been some egregious offense to the very marital union. States such as New York at that time permitted divorce only for very serious offenses that were considered to undermine the nature of the marital connection, such as adultery. Other states considered the amorphous category of “cruelty” to be a sufficient basis for dissolution. Colonial divorce laws varied considerably by region, with the northeastern states tending to be slightly more liberal than their southern neighbors. In the United States there was no established state religion, but the relationship between religious perceptions and beliefs about marriage and the construction of state principles regarding that connection were still evident, if attenuated. The individual states incorporated common-law concepts and definitions from the religiously shaped English rules into their laws governing family. American judges tracked the religious rhetoric of their English counterparts when considering issues involving the family. Divine laws governed family relationships, setting out the natural order for the individuals who entered them. The content of the marital relationship was also divinely structured. In what has become one of the most famous concurrences in the American legal tradition, in the 1873 Supreme Court case of Bradwell v. Illinois, Justice Bradley made what is still considered the classic statement regarding the common-law perception of the divinely determined distinct roles of husbands and wives. The organization of the traditional family in the British and American legal tradition was also patriarchal, with the husband—“head” of the family—owed obedience and domestic and sexual services from his wife. In return, he was obligated to support her and their children. The husband’s role conferred rights as well as responsibilities, including the right to punish family members. Because he bore responsibility for their actions, a husband had the right to reasonably chastise both wife and children. His support obligations also gave him a corresponding right to the earnings of his wife and children, and to control over their property.

Further, the view of marriage expressed by Justice Bradley and the divinely ordained respective positions of the spouses also limited the expectations and opportunities for married women in the larger society. The marital family’s hierarchically organized and well-defined gender roles placed the spouses in different spheres. Women, excluded from many of the public aspects of life, were perceived as appropriately dependent. As the Bradley concurrence in Bradwell expressed, their true calling was considered to be the home and family.

This ordering of domestic life was intuitive—a response to the natural dependency of women. Common law imposed disabilities on women that supported this ordering of the world. Married women were not able to own property or make contracts. In some instances they could not even be held responsible for their own torts or crimes. Their husbands, perceived as controlling them absolutely, were charged instead.

The common law expressed a structure in which the distinct specializations of the spouses complemented each other: the wage earner and the housewife; the protector and the protected; the independent and the dependent. Each spouse needed his or her complement in order to attain and maintain a whole, complete family entity, one that provided for all its members’ needs. This specialization, bringing together the head and the heart of the family in the form of husband and wife, allowed the marital family to function in a self-sufficient manner, providing both economic and domestic resources to the unit.

This unequal, if complementary, positioning of men and women within the common-law family became problematic for women when divorce became more prevalent under no-fault statutes. These statutes changed a fundamental aspect of marriage. Marriage in its common-law manifestation was considered a lifelong commitment, but no-fault divorces ushered in a revolution in our way of thinking about the permanence of the relationship of marriage. No-fault meant much easier access to divorce. In many states divorce became available on unilateral demand of one spouse even over the objection of the other that the relationship could be salvaged. Men who wanted to be free of their “faultless” wives (as determined under the previous fault divorce statutes) no longer had to bargain with those wives and buy their complicity in the divorce process through concession of property or other economic incentives.

Initiated by both wives and husbands, no-fault opened the divorce floodgate and exposed the economic vulnerability of the common-law assignment of ownership of all wages and property to the wage earner. Wives were not considered entitled to a share of property accumulated during the marriage, since they did not earn the money to buy it and typically title was in the husband’s name. As a result, women found themselves and their children destitute at divorce.

The discouragement of married women from participation in the workplace and investment in a career also had more general negative economic implications. After a divorce, women found that they had to work in the marketplace as well as in the home, yet the old vision of marriage had discouraged them from honing the skills they needed to do so. All this has changed, of course. The no-fault revolution coincided with another revolution in the way we understand the world—the gender equality movement, which ushered in massive changes in all phases of life, including marriage.

No Fault Divorce In Draper Utah

The move to no-fault divorce might have altered our view of marriage, but the gender equality revolution altered the way women perceive their societal, nonfamilial roles. It seems hard to believe that it was less than a century ago that women won important political and civil rights, such as the vote, which was achieved in 1920 with the passage of the Nineteenth Amendment. Even after women achieved the right to vote, they were still excluded from service on juries. Although the first women were summoned to jury service in 1870, as a rule, women were systematically denied or exempted from jury service for the next century, usually for reasons that were considered “benign” and “practical”. It was not until 1994, in J.E.B. v. T.B., that the Supreme Court declared that peremptory challenges based on sex violate the equal protection clause of the Fourteenth Amendment. Until recently, the common-law rule was that a woman’s domicile (essentially her legal place of residence) was always the same as her husband’s. This caused difficulty for many married women, as a person’s domicile is used in determining numerous legal entitlements, categories, and qualifications. Because a woman’s legal identity had traditionally been merged with that of her husband, her domicile was assigned based on her husband’s place of residence, and a woman had no control over this determination. As divorce laws changed and women’s destinies were less tied to the institution of marriage, the inappropriateness of this situation became more obvious. The common-law rule began to change in the 1970s, and the American Law Institute finally ratified this change in 1988.

Prenuptial Agreements

Prenuptial agreements have come to enjoy a presumption of validity, as long as they were made voluntarily and with full disclosure of financial information. Some courts still maintain the additional requirement that an agreement be substantively “fair” to both parties. Even while they do so, recognition is typically given to the changes in gender expectations. If you are planning a divorce and have a prenuptial agreement in place, consult with an experienced Draper Utah divorce law. The lawyer will review your prenuptial agreement and advise you on whether the agreement will be held valid by the court.

Child Custody And Child Support

The past few decades have witnessed a dramatic increase in the divorce rate in the United States and elsewhere, a phenomenon that reflects and influences changing social attitudes toward marriage and the family. When offspring are involved, the divorce process becomes further complicated by considerations over custody and visitation rights. And when the parents themselves cannot resolve these issues, the courts are faced with the difficult task of making a custody decision.

First, despite important differences in the amount of time they spend with their infants and young children, both fathers and mothers are significant figures in the infant’s world from a very early age. By the end of the first year, infants recognize both parents and prefer them to unfamiliar adults. By this time and increasingly during the second year, infants respond differently to each parent, reflecting the development of a rudimentary appreciation of each parent’s unique role in their world. The research indicates that there are more similarities than differences in infant responsiveness to fathers and mothers: They protest separation from either parent, delight in being reunited with them, and play comfortably in the presence of either father or mother. By all accounts, it is apparent that infants develop emotionally salient attachment relationships with each parent by the end of the first year. In short, both mother and father are “psychological parents” to their young infants, even when the father does not assume major caregiving responsibilities. There is every reason to assume that the psychological salience of each parent persists as the child grows older.

Second, even though both parents are important figures in the infant’s world, mothers and fathers differ significantly in their caretaking roles and responsibilities in most homes. Mothers typically assume basic caretaking tasks such as feeding, cleaning, dressing, soothing of distress, and preventative protection from harm. When they play with their babies, they use low-key verbally-oriented and toy-mediated games. In contrast, fathers are typically much less involved in routine caretaking tasks. Rather, they spend a greater proportion of their time engaged in play–specifically, a vigorous rough-and-tumble, physically stimulating kind of play.

The adjudication of child custody disputes raises important and interesting questions, among them the role of fathers as caregivers. For many years, courts have assumed a preference for the mother, contending that a mother’s nurturance and love constitute irreplaceable components of early socio-personality development, particularly during the “tender years.” More recently, however, judges have been using a more egalitarian “best interests of the child” guideline, in which mother and father can compete on a more equal footing for the custody of offspring. Yet this new guideline is a mixed blessing. Although it opens the door to fathers, its conceptual ambiguity permits a wider latitude of subjective judgment on the part of judges, which often results in an implicit maternal preference. The question of what are the child’s “best interests,” and how these may be served by a custody decision, is crucial if this decision-rule is to play a useful role in the custody adjudication process.

In hearing a custody dispute, a judge is faced with an unusual and difficult decision. Most legal disputes focus on the documentation of facts relevant to a case; child custody decisions entail more subjective judgments of parental caregiving competence. Furthermore, custody disputes cannot be resolved on the basis of judicial precedent. Rather, they must be addressed on a case-by-case basis, taking into consideration the unique history and circumstances of the family in question. The judge’s decision-making is further complicated by the predictive nature of the custody award. That is, he or she must consider the long-term ramifications of the decision, including the future economic and living conditions of each parent, the developmental needs of the child, and the potential availability of extrafamilial support systems. Finally, custody decisions rely heavily upon a judge’s discretionary powers in applying legislative guidelines to the particular family in question.

To be sure, most parents who divorce can agree on custody of the children without seeking judicial help. Despite the dramatic increase in the rate of divorce over the past two decades and the broadening of legislative guidelines to put parents on a more equal footing in seeking custody, fewer than 15% of the couples who divorce will proceed with a fully contested custody battle. And, of course, the overwhelming majority of custody awards are to the mother: Fewer than 10% of divorce decrees award children to the father. In many cases, fathers who receive custody do so with the consent of the noncustodial mother.

But although the proportion of disputed custody cases seems to be stable, the absolute number of disputes is increasing sharply due to the rising divorce rate. Coupled with the gradual changes in parental roles evoked, in part, by the increasing number of working mothers, it is reasonable to expect that the number of divorce petitions in which both parents want custody will continue to increase in the years to come. Therefore, it is important to clarify the guidelines by which judges resolve these disputes. The legislative guideline that currently prevails in most states–that is, awarding custody according to the “best interests of the child”–is historically the least explicit. Interestingly, English legal tradition long asserted a paternal preference, reflecting a time in which offspring were regarded as heirs to privilege and wealth and as parental property. Thus the father was viewed as the primary guardian of his legitimate children and, in the event of a dissolution of the marital bond, he assumed exclusive custodial rights. With the changes in social structure wrought by the Industrial Revolution and changes in social philosophy provoked by writers like Locke and Rousseau, this common law assumption gradually broke down. Instead, by the 19th century, both English and American law put the wife on an equal footing with her husband: Both were to receive equal consideration in a custody decision. In practice, however, this usually resulted in an implicit maternal preference, because custody decisions were based on evaluations of parental fitness and wives, as the customary initiators of divorce action, were in a better position to argue against their husbands. Concurrently, an explicit maternal preference when the children were in their “tender years” (generally speaking, under the age of seven) helped to consolidate this implicit bias for the mother in the courts. In short, changing judicial guidelines were reflecting changing social values. Childhood was increasingly viewed as a period of nurturance and education, and mothers typically assumed a major role for both. Early in the 20th century the maternal presumption became consolidated in judicial decision-making, sometimes by explicit statute but more often in the form of case law.

Jurists assumed that, except in instances when the mother was clearly unfit, it was consistently best for the child to benefit from the love and nurturance provided by the mother. They were supported in this assumption by contemporary psychoanalytic theory, which stressed the unique role of a mother’s love to early psychological development.

More recently, however, the maternal presumption has been increasingly questioned in favor of a more egalitarian guideline. Much of the impetus for this reconsideration has come from social critics who regard the maternal preference as inherently sexist and a perpetuation of traditional gender roles. The dramatic rise in the number of working mothers in recent years and the concurrent increase in demand for infant and preschool childcare services are particularly salient manifestations of the changing American family. Thus the traditional family system in which mother is a fulltime caregiver is no longer the norm, and this has undermined the rationale for an explicit preference for mother in custody disputes. In addition, of course, there are a number of instances in which an explicit maternal presumption is clearly inappropriate, such as when the father or another person has assumed sole caregiving responsibilities, or when the mother is abusive or neglectful. Finally, many critics contend that the maternal presumption focused attention on judicial evaluations of parental fitness rather than on child-centered concerns. Thus the purpose of the best interests guideline is to encourage an appraisal of the custody dispute in light of the contributions (actual and potential) of each parent to the child’s present and future needs.

Problems with the Best Interests Of The Child Guideline

This legislative intent may be significantly undermined, however, by the ambiguity concerning how the child’s “best interests” are to be determined. Judges are provided few explicit decision-rules to determine what a child’s best interests are, much less rules that take into account a child’s changing developmental needs. Even when statutes provide broad guidelines defining the child’s best interests, these guidelines are seldom very explicit and judges are offered no guidance concerning which of these interests are most important in determining custody. This leaves judges broad discretion in defining these interests, with the result that custody awards can be determined on the basis of highly subjective criteria that may vary widely on a case-by-case basis. Alternatively, many judges simply adhere to a maternal presumption despite the changed mandate. In short, one of the greatest problems with the best interests guideline is the current lack of certainty concerning how this expression should be interpreted. A fundamental question, for example, concerns which of the child’s many “interests” should predominate in a judge’s deliberations over a custody award. Fundamentally, of course, children require the basic necessities that promote physical well being: adequate nourishment, a warm, safe home environment, sufficient health care, clothing, and an interpersonal environment that is not overtly abusive or oppressive. Beyond these basic necessities, however, there is considerable controversy concerning which of the child’s other needs merit primary consideration. Is it important that the child be with the parent who has provided the most care in the past (i.e., ensure continuity of care)? What of the child’s future educational or religious training? Should jurists be concerned with the child’s “character development”? Is continuity in living circumstances important? Should the child be with the same-sex parent? To put it simply, should the child’s best interests be strictly construed to mean only the basic requirements of adequate caregiving, or should the courts be more interested in the child’s optimal development?

There is no easy answer to this question, and opinions vary widely. Some legal scholars advocate a more limited interpretation of the child’s interests in order to curtail the court’s discretionary powers in deciding child placement cases (e.g., custody, foster care, etc.). On the other hand, some experts argue that “psychological parenting” should be the primary consideration in determining child placement; that is, to whom has the child developed a lasting emotional bond? There is, in short, no clear consensus concerning what constitute the child’s primary interests in determining a custody award.

Assuming that the best interests guideline is meant to include factors other than physical well being alone, a second question concerns the limits of this construction. That is, how do we evaluate the parental caregiving practices that promote the child’s best interests? Is one parent’s warm but permissive approach preferable to another’s less affectionate limit-setting? Should judges prefer a custody arrangement that is likely to foster a strong traditional gender identity in the child? These and a range of similar questions surround most custody decisions and concern the implicit goals and values that underly a court’s preference for one parent over the other.

It is doubtful that there is much broad consensus within most Western societies concerning these child-rearing goals and practices. As with differences in lifestyle, parents vary greatly concerning the traits and characteristics they seek to develop in their children, and they employ a range of practices for achieving these goals. This diversity contributes to the heterogeneity of a society, in fact, and courts have traditionally hesitated to infringe upon parental freedom to raise their children as they prefer. Indeed, apart from those instances in which state intervention is mandated by manifest child abuse or neglect, greater concern has been voiced over the state’s overregulation of parental decision-making in areas such as education, religious training, and medical care. In short, society encourages a great deal of freedom and diversity in child-rearing goals and practices and, by and large, the courts have insured this freedom. In the adjudication of child custody disputes, however, judges frequently rely on subjective judgments of a parent’s caretaking style that are often based on personal values and beliefs. Sometimes these judgments concern the “moral climate” of the home. In some cases, a judgment is based on a parent’s occupational commitments, political affiliations, expectation of remarriage, or economic circumstances rather than his or her relationship with the child. In short, these judgments of caretaking often involve intuitive, usually unarticulated value judgments that are relative to the values and beliefs of the judge determining a custody settlement. These values are likely to reflect sociocultural and social class biases as well as religious beliefs and moral attitudes. Importantly, they usually entail judgments of parental fitness, with secondary regard for their actual or potential effects upon the child. Thus a second difficulty with the best interests guideline concerns judging the parental practices that contribute to a child’s best interests. In the absence of a prevailing social consensus, judges tend to use their own intuitive value judgments that may or may not reflect child-centered concerns.

It is important to note, however, that intuitive judgments of parental practices are not limited to jurists. Indeed, “expert testimony” from various sources, including psychiatric witnesses and social workers, has been criticized as being largely subjective and value based, and thus unreliable. In other words, any subjective assessment of a family is likely to result in speculative and unreliable judgments. Furthermore, this unreliability is especially likely when the family is under stress (as in a custody battle), when normal patterns of interaction are affected by emotional turmoil. Thus it is doubtful whether assessments of family interaction at the time of a custody dispute–by a judge or an “expert witness”–yield meaningful information about parent-child relationships. A third ambiguity in the best interests guideline concerns the time frame within which a child’s interests are appraised. Divorce presents parents and children with immediate and difficult adjustments. Should judges seek a custody arrangement that helps the child to negotiate these short-term transitions? Or should longer-term concerns take precedence if they conflict with more immediate needs? These, too, are questions of judgment about which legislative guidelines or judicial precedent offer little guidance.

Taken together, the major difficulty with the best interests guideline is the broad interpretational latitude permitted judges in deciding custody disputes. Disagreement exists concerning which of the child’s many interests should be included in a judge’s deliberations, how these interests are translated into judgments of parental child-rearing practices (and how these practices should be assessed), and whether short-term or long-term concerns should take precedence. These conceptual ambiguities thus delegate a good deal of discretionary power to judges, with the result that custody decisions may be based on implicit value judgments that are relative and thus inappropriate to legal decision-making. Of course, these interpretational problems are most acute when the child’s best interests are broadly construed, but to some extent they are inherent within any such inclusive formulation.

In view of this, some legal scholars have called the process of child custody adjudication “indeterminate”–that is, there are often no reliable, objective and legally satisfying ways of awarding custody to a parent according to the child’s best interests. Whereas some custody cases are always relatively easy to resolve (such as when one parent is abusive, or has abandoned the family, and the other parent has not), for the majority of cases there exist no generally accepted, easily applied decision-rules by which the child’s best interests may be determined fairly and objectively. The same case presented to two judges may be decided in very different ways. The indeterminacy of child custody adjudication also has important implications outside the courtroom. Legal guidelines usually serve as negotiating parameters by which the parties to a dispute can assess their relative chances of success in adjudication and modify their demands and expectations accordingly. Under the best interests rule, fathers and mothers are provided little information of this kind. Thus articulate and consistent custody guidelines are necessary both for the adjudication process and for the interpersonal bargaining that precedes it. What is the solution to judicial indeterminacy in custody cases? Some have suggested a return to more specific, all-encompassing legislative decision-rules (e.g., custody awarded to the mother if the child is age 5 or younger; custody awarded to the same-sex parent with older children). This would limit judicial discretion, but a proportion of disputes would certainly be resolved unfairly. Another proposal is for a greater emphasis on predivorce mediation to encourage parents to seek their own solution to the custody dispute short of a court battle. A third–and more radical–alternative is to decide custody disputes by some random process: in essence, a judicial coin-flip.

Such an approach would acknowledge the inherent inability of the court to make an objective, reliable custody award, and would prevent the noncustodial parent from feeling that he or she was judged to be a less adequate parent than the spouse with custody.

Short of these alternatives, it is clear that judicial decision-making in custody disputes entails highly idiosyncratic considerations that must be addressed on a case-by-case basis. The history of the family in question, the wishes of the child, the nature of the temporary custody arrangements, the quality and quantity of predivorce parental caregiving involvement, and prospective living conditions for the child with either parent are all considerations (to name a few) that should figure prominently in a custody award and that are likely to vary from one family to another. The important question, however, is whether there exists a valid overall framework within which these factors can be considered and by which further information may be requested and evaluated. In other words, judges and lawyers require some general understanding of the nature of family functioning in intact and divorced homes in order to properly interpret and weigh these considerations relevant to the child’s best interests. Operating within such a framework, jurists may be less likely to base custody decisions upon idiosyncratic and value-laden considerations. It is in providing such an overall knowledge base that psychological research may have a limited but important role in the adjudication of child custody disputes. This is particularly true concerning the role of fathers as caregivers, which is the topic of this review.

One very important factor differentiating mother-child from father-child relationships is the quantity of caretaking. In traditional homes, of course, the mother is usually relegated childcare as well as other domestic chores while fathers spend most of their day away from the home. With the reappraisal of gender roles during the last decade, one might anticipate a softening of these traditional childcare assignments within the home. Several recent studies of time use suggest, however, that fathers are still largely uninvolved in routine caretaking tasks.

Taken together, these differences in the quality and contexts of mother-infant and father-infant interaction reflect a basic difference in each parent’s role vis-à- vis the baby. In most instances, the mother is the infant’s primary caretaker, even when she is employed outside of the home. That is, she more typically provides for the baby’s basic needs–feeding, bathing, diaper-changing, soothing of distress, preventative protection from harm, and similar ministrations–as well as being a salient social partner in low-key play. In contrast, the father’s typical role as a secondary caretaker is less focused around specific caregiving activities and more focused on vigorous, physically stimulating play with the baby. Play is thus a more basic interactive context for infants with their fathers than with their mothers; in addition, different kinds of play activities also distinguish each parent. In short, infants begin to know and develop expectations for each parent in somewhat different social contexts.

Does this division of roles mean that fathers are less competent than mothers in basic caretaking tasks? Evidently not. If you are a father, speak to an experienced Draper Utah divorce lawyer for advice on how you can get custody of your children.

Fathers are competent and responsive caretakers, whether their competence is appraised in terms of the occurrence of certain caretaking behaviors or their responsiveness to infant cues. Similarities in mother-infant and father-infant nurturant and caretaking activities have been noted for parents in other cultures as well. Such findings are ironic in view of the strong tendency of fathers to eschew caretaking roles at home. In other words, fathers can be highly competent caretakers when called upon to do so, even though they seldom assume such responsibilities spontaneously. Instead, they spend a greater proportion of their time engaged in vigorous, physically active play with their infants.

Taken together, the research on mother-infant and father-infant relationships indicates that fathers are preferred as play partners from a relatively early age, and mothers are preferentially sought when infants are fatigued, alarmed, or stressed. As earlier indicated, the paternal preference is unsurprising in view of the contexts in which infants typically encounter their fathers and the kinds of exciting, physically active games fathers play. Infants seem to learn that fathers are fun to play with during the second year. Similarly, infants’ preferences for their mothers under stress are also unsurprising in view of the maternal caretaking role in most families. Mothers typically feed, bathe, clothe and, importantly, comfort their babies when the infants are distressed; infants seem to learn early on that their mothers are a source of soothing. Thus mothers and fathers differ importantly both in their caretaking roles and, it seems, in how they are perceived by the baby from an early age. Mothers as primary caregivers in most families spend a greater amount of time with their infant sons and daughters and assume greater responsibility for routine caretaking tasks, even when they also work outside of the home. Fathers as secondary caregivers spend less time with infants overall but devote a greater proportion of their time to physically vigorous, arousing play. These differences in parental involvement are manifested early in differences in infant responsiveness. Infants prefer their fathers as play partners and respond more positively to them in these situations. Under conditions of stress, however, they turn to mothers, reflecting different expectations for each parent that develop during the first year. In short, infants learn about their mothers and fathers in different contexts, and develop different expectations for them as a result.

Often a child can become a mere cipher in conflicts over custody. Finding the right balance between the claims of two separating partners is not easy. Judges have more commonly been willing to award custody of young children to mothers on the ‘tender-years’ principle: the idea that, because of the strong natural bond between mother and child, if young children cannot be with both parents, they are better off with their mother. So, while the case for women in the custody battle may be strong, it is increasingly recognized that men, too, have grievances to be addressed and that current law can disadvantage them in a number of ways. In the vast majority of cases, custody of children on divorce is awarded to women, and contact orders, largely made to men, are often broken. There are particular cases where court decisions are likely to strike anyone as totally unfair—a non-working wife who ends a marriage because of another liaison may well be awarded children, house, and most of the couple’s financial assets, notwithstanding her responsibility for the collapse of their joint family-building project and her lack of any financial input. She is free to introduce unofficially into the family structure another man to replace the natural father in the lives of her children. With the growth of these disadvantages has come the loss of many of the previous advantages of marriage for a man, as traditionally the best way of securing not only a steady sex life, but also status in the community, and a substantial and satisfactory personal project in which he could reasonably regard himself as a vital element.

Given these tensions, it is not difficult to see why the closing years of the twentieth century should have seen demands for a new approach to child custody based on the principle that, even if divorce can end relationships between adults, it is important to maintain the child–parent relationship. The presumption is that a continuing relationship with both parents will enable both of them to offer physical, emotional, and financial support to their children. The practical goal, then, becomes a matter of seeking to ensure reasonable contact for both parties. But ‘reasonable contact’ is an imprecise concept, varying from contact on alternate weekends to a more extensive and rigid division of time mapped out in terms of days or even hours per year. So joint or shared custody, in the sense of children’s time being relatively equally divided between parents, has become the arrangement of choice for some on the basis that it finally establishes the principle of equality and the equal legal standing of women and men. It may also be promoted from the child’s point of view, as it is, for example, in parts of the USA, where co-parenting may be advocated as a matter of a child’s rights—in this case, a right to live with either parent for some of the time. But the burden such arrangements impose on children should not be underestimated. It is often argued that disruption for children can be justified if it represents an escape from extremely difficult domestic situations. But, in general, the effects of divorce on children are poor and can be measured in terms of low educational achievement, difficult relationships with parents, especially fathers, and other emotional problems.

So all this leaves us with the fundamental question of who should care for the child when a couple splits up. For this we need to understand the judgement King Solomon passed. There is, though, more to the story of Solomon’s judgement than this. Faced with the equal balance of the two rival claims, Solomon intends, or at least pretends to intend, to take a sword and split the child in two. The false claimant is ready to accept this. But the true mother calls for an end to the legal battle and its dire outcome, saying that she is ready for the sake of her child to allow it to go to the other claimant. Solomon gives the child to her for, by her willingness to sacrifice her own interest, she has unintentionally demonstrated the truth of her claim.

In many ways, equal joint custody resembles the solution proposed by King Solomon—the child must live a split life between two homes, with little time or opportunity to create a place for itself in either, and much of its potential time with peers taken up by outings with a displaced parent. In these circumstances, it may be that some parents will express their love for the child by relinquishing maximum rights, asking only reasonable and modest access, in order to give the child a life of its own.

Cases involving extreme violence represent, of course, the outer limits of the way in which custody can serve the needs or preferences of parents and ignore the vulnerability of children. But, even where violence is not a factor, contact and residence rulings can be a way, deliberate or not, for one parent to exercise control over the other, making it impossible for the other parent to gather up the threads and start again, free from harassment and disruption. There are no easy answers to post-separation arrangements looked at from the point of view of the children themselves. It would be better if parents could recognize this and acknowledge that their own decision to split up means that, as far as their children are concerned, their security, home life and frame of reference for living their lives has been unpicked. If it is difficult to secure fairness for both parents, it is even more difficult.

Reconstituted Families

In practice, separations often bring into already complex situations new people, both adults and children, who have their own needs and perspectives. For, while the initial situation may be focused on the problem of how two individuals are to share their children’s lives between them, in practice one or both partners may bring someone else into the picture, posing a challenge of adjustment both for the adults and for their children. As far as the adults are concerned, it may be difficult to accept that their children are living with the person who has replaced them in their partner’s life. It will be difficult if the new mother or father is not caring properly for the children, but in some ways just as difficult if they are doing so successfully. A mother, particularly if she is not responsible for the breach, may find it very hard to accept that the woman who is responsible for it has taken over her role and formed a bond with her children. The same applies to fathers. A man, too, may find it hard to accept the reality of his children living with the man who has taken over his own role.

Custody and access are, of course, intended to protect parents’ relationships with their children and also to secure the best interests of those children. But these are difficult goals to reconcile. Even in the best of cases, children do not like to be asked to choose between their parents. Listening to the child’s voice is a worthwhile step, but no one should be deceived into thinking that that is a universal panacea. Like the apocryphal traveller whose request for advice evokes the response ‘I would not start from here’, in most cases the child does not want the split in the first place. What children most need and most want is what normal family life provides: a chance to build their own lives and relationships with their peers, with their parents in the background for support and comfort, and preferably not as judicially ordered companions for parent and child outings.

What children want, sadly they will not always get, and sometimes society itself will pay the price. But it is worth adults at least being clear about what they are doing and not deluding themselves with anodyne suggestions that their children will be happier, or at least benefit, when their aspirations for simple childhood constants are shattered and exchanged for a new life that includes mobility, fluctuating relationships, new ‘siblings’ to negotiate with, and new parental whims to accommodate. The old mantra ‘I am only staying with you for the sake of the children’ may often have been the simple truth in the past and in many cases could have been the better choice. From the child’s point of view, it may still be so. For, on the whole, children like families—the family is a child-friendly institution and only secondarily there to keep adults happy.

Child Abuse

If your spouse is abusing your child, you should seek custody of your child. Proving child abuse is difficult as the child may be scared to speak out against the abusive parent. You will require the services of an expert witness.

Although no uniform theory is available to provide consistent answers to disputed issues between conflicting parties, there should be a common goal for all professionals acting as expert witnesses. That is, all theories and expert witnesses should work toward the best interest of the child. However, different professionals may disagree as to what is in a child’s best interest. Under this premise, lawyers need to know the fundamental similarities and differences of all theories and models of child abuse and neglect such that expert witnesses can be called upon who will select the most accurate and impartial view of the child’s best interest. In short, the knowledge provided by the expert witness should serve the functions of verification, confirmation, conversion, and education in order to increase maximal judicial validity of evidence presented in court.

Responsibilities Of The Lawyer In Using Expert Witnesses

In legal proceedings dealing with victimization, the court may require concrete and comprehensive information from experts in order to establish the evidence of responsibility, causality, liability, and damages. Therefore, the lawyer involved will need to have accurate knowledge of the (1) perpetrator (e.g., intention), (2) victim (e.g. impact), (3) victimization processes (e.g., form of maltreatment), and (4) social and legal dispositions (e.g., removal of the victimized child from the abusive environment).

Resolution for these issues relies heavily on subjective explanations and interpretations of circumstantial evidence and facts. Because of the subjective nature in explanations or inferences, the experts used by the legal profession will thus generate possibly controversial and incompatible opinions about various objective phenomena of child abuse and neglect. Therefore, in dealing with the diverse theoretical backgrounds of the experts, lawyers need to have a clear understanding of evaluation criteria for assessment of expert testimony. That is, each expert should and can be characterized in terms of his/her theorization of child abuse and neglect. Since clinical and psychological testimonies are frequently based on some theories that may have no empirically verified foundations, lawyers handling of child abuse and neglect cases, with or without the assistance of other professions, should always evaluate the admissibility of expert testimony in reference to multidisciplinary theories and knowledge. Therefore, the judicial validity of future expert testimony will rely heavily on the competency and willingness of lawyers in testing its admissibility in the areas of necessity, reliability, validity, understandability, and importance.

Above all, it relies on the ability of lawyers to identify different origins of various theoretical foundations used and to differentiate their feasibilities for application to the legal issues involved.

Child Support

In regard to the state maintaining a primary interest in the dependency component of the parent-child relationship, the cases and legislation are very clear. The economics of the tie are for state determination. Husband and wife cannot negotiate child custody and support free from judicial scrutiny and approval. The state retains an interest in these arrangements and the right to assess and alter any settlement the spouses may reach upon divorce even to modify existing arrangements in the best interests of the child.

Economic or dependency issues concerning the ongoing needs of children that are addressed in the divorce context can be compared with the nonmarital situation. Historically, marriage defined the status of children in relation to their parents and the claims they could make upon or through them. The presence or absence of marriage determined which children were labeled “legitimate” or “illegitimate” and, thus, either granted or denied benefits accrued by their parents under state insurance and compensation schemes.

The U.S. Supreme Court has reduced the significance of marriage in regard to the parent-child connection. It did so first in regard to mothers when, in Levy v. Louisiana, it held that denying damages to “illegitimate” children as a result of the wrongful death of their mother is a violation of the equal protection clause of the Fourteenth Amendment. But fathers’ connection to children has also evolved so as to not require its mediation through the institution of marriage. Unmarried fathers now have rights and responsibilities for their children that were not part of the common law scheme of things. Nonmarital children are entitled to benefits historically reserved for their marital counterparts, such as parental support, workers compensation benefits, and the right to recovery in the event of a parent’s wrongful death. Such improvements recognize the reality of dependency is more important than the status of the parents’ relationship.

Draper Utah Divorce Lawyer Free Consultation

When you need legal help with a divorce case in Draper Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with temporary orders. Modifications of Divorce Decrees. Child Support. Child Custody. Property Disputes. Retirements Issues. QDROS. Mediation. And Much More. We want to help you.

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Divorce Lawyer Draper Utah

Speak to an experienced Draper Utah divorce lawyer if you need sound legal advice on divorce. We can help you with temporary orders, child support, child custody, alimony, property division, mediation, negotiations, real estate, and much much more. Divorce law has come a long way since the time the first settlors setup their colonies in the United States.

On May 3, 1930, a large advertisement for Robert Z. Leonard’s film The Divorcee asked the readers of the Washington Post, “Has Love a Chance in Today’s Hot Pursuit of Pleasure?” Loosely based on Ursula Parrott’s 1929 novel Ex-Wife, the film starred Norma Shearer, who won an Oscar for her portrayal of the title character. From the opening scene in which Jerry, played by Shearer, boldly insists that she and Ted (Chester Morris) get married and “make a go of it” as equals, the filmmakers signaled that Shearer’s character was a quintessential “new woman,” committed to a form of female equality and independence defined by male standards. Jerry’s determination on this point is so strong, in fact, that upon discovering Ted’s affair with another woman three years into their marriage, she promptly retaliates by having an extramarital sexual encounter of her own. Ted, after learning of her infidelity, demands a divorce. Jerry plainly has overestimated the extent of her equality—a sentiment echoed in the advertisement when it teased: “Her sin was no greater than his—but she was a woman!”

Once again single, Jerry vows to enjoy her freedom and to keep her bed open to all men except for her ex-husband. She quickly, however, becomes dissatisfied and physically drained by her new life of sexual adventure. Escape presents itself in the form of a married friend named Paul (Conrad Nagel), who proposes to divorce his wife Dorothy (Judith Wood) so that he and Jerry can begin a new life together. Indeed, Dorothy is Jerry’s counterpoint throughout the film. Whereas Jerry is beautiful, Dorothy has been tragically disfigured in a car accident on the night of Jerry and Ted’s engagement. Jerry and Ted married for love, but Paul, who was heavily intoxicated when the accident occurred, married Dorothy only out of guilt. While Jerry accedes to Ted’s insistence of a divorce, Dorothy refuses to concede marital defeat and will not give Paul the divorce he so desperately desires. Comparing herself to Dorothy, Jerry realizes the many ways that she has wronged her own union with Ted. Jerry thus arrives, as one reviewer explained, at “the realization that her own marriage has been a failure because she has not had the same determination [as Dorothy] to see it through.” She resolves to find Ted, and the two have an emotional reunion in which they promise to make their new marriage a success.

By the conclusion of The Divorcée, Jerry—and by extension, the audience—have learned several lessons. First, Jerry’s desire for marital equality is foolish and unrealistic. The film does not criticize a sex-based double standard; rather, its message is that in trying to emulate men, women can lose sight of what is truly important: love and marriage. The pitiful Dorothy is the true female center of the film—she is not beautiful, but she appreciates the value of being married and is willing to fight for Paul. Moreover, the film says, sexual freedom does not ensure happiness, especially for women. Prior to their mutual transgressions, Jerry and Ted plainly enjoy a fulfilling sexual relationship. Jerry’s life as a wanton divorcée, however, is unsatisfying, and only a chance encounter with Paul prevents her from becoming a hardened seductress. Finally, while divorce is sometimes a necessity, it is also frequently the result of easily avoided misunderstandings. Only in reunification—a theme that understandably became a popular Hollywood ending—can Jerry and Ted rediscover their former happiness and lead constructive lives.

The Divorcée quickly became one of the “stand-out hits of the early summer season” of 1930, and popular demand extended its run throughout the nation. The media’s descriptions of the film—press coverage alternately described it as “a chapter out of modern life,” “a Metro-Goldwyn-Mayer production dealing with a great social problem,” and “the most sophisticated treatment of the question of divorce”—highlighted its varied appeal to audiences. By 1930 divorce had indeed become a reality of everyday American life. At the same time, however, many Americans were deeply anxious about what the escalating divorce rate meant for the family, women, and the very future of the nation. Such fears were fanned by an emergent group of experts who spent the first several decades of the twentieth century identifying a “crisis” in American marriage. These self-appointed experts, some from within the academy and some with little or no formal training in sociology or related fields, came from different parts of the political and ideological spectrum. They agreed, however, that marriage (particularly for the white middle class) was in a period of crucial transition and that married couples could not handle this transition effectively on their own. The general belief that marriage was in trouble was hardly new. Social critics and clergyman, in fact, had been decrying a “marriage problem” for most of the nation’s history. But these early critics had focused their efforts on convincing the American public of the indissolubility of the marital union and, if this former effort failed, of the need for uniform divorce laws in order to prevent most divorces. By the 1920s, however, this debate had grown increasingly stale and the arguments ineffective. The ostracism that had once accompanied the decision to divorce had subsided, and the voices of experts began to supplement, and in many cases replace, those of religious authorities in the national conversation about marriage in the United States.

As the nineteenth-century understanding of marriage as a duty faded, experts worked to convince Americans to take an active interest in the health of their marriages. They focused much of their attention on women, the traditional guardians of the home and the individuals deemed primarily responsible for the continuing changes in family life. Experts believed that if marriage was going to be a “companionate” venture—a relationship based on love and satisfying sexual relations—divorce was an important safety valve for husbands and wives who were trapped in loveless unions. They hoped, however, that by studying marriage in an objective manner, they could develop strategies that would slow the rising divorce rate and, more important, improve the general quality of American marriages. To this end, experts launched research studies intended to quantify marital success and taught marriage courses at universities. Some even began to experiment with a European technique known as “marriage counseling,” anticipating that they could prevent both ill-advised unions and unnecessary marital breakups. These efforts, in turn, laid the groundwork for a new understanding of what it meant to be married in the United States.

The nineteenth-century idealization of married, romantic love was a key ideological origin of this transition. Stereotypes of Victorian prudery aside, many American men and women—especially those from more privileged economic backgrounds—clearly expected to have intimate, loving relationships with their chosen mates. During courtship, they exchanged impassioned letters and expressed hopes that their fervent feelings would not subside after marriage. Once married, they expected to place their obligations to one another and to their growing families above those to their extended families and their civic responsibilities. Nineteenth-century Americans, therefore, gradually began to view marriage as a central life experience from which they could derive happiness and forge satisfying personal bonds. This ideal, of course, was often difficult to achieve. The Victorian belief in the innate differences between men and women, in particular, impeded the full realization of marital intimacy and romance. Many husbands and wives, in turn, struggled to share common experiences and interests with their spouses.

Nineteenth-century marriage advisers (primarily ministers and physicians) nevertheless regarded this new emphasis on love with a sense of trepidation. One root of their concern was the fact that many nineteenth-century Americans believed love to be an uncontrollable emotion. While they considered it to be a prerequisite for marriage, they did not necessarily believe that all love was eternal. If marital love was lost, no prescribed action could recapture the feeling. Critics, therefore, tried to inject a more practical view of marriage into discussions of the institution. They argued that love was a choice and that young married couples could take concrete steps to ensure that their unions remained happy. In print, advisers reminded their readers that if these efforts failed, their marriage vows remained binding. It was desirable, in other words, to be content—rather than miserable— while fulfilling ones’ duties. When nineteenth-century marriage advisers pointedly rejected the possibility of divorce, however, they betrayed a fear that not all Americans understood the sanctity of their marriage vows. This concern was not necessarily misplaced. Divorce, in a very limited form, had been available in the United States as early as the colonial era and spread in the years following the American Revolution. No sooner, it seemed, did Americans create a rationale for dissolving the bonds of empire than they set about creating rules for dissolving the bonds of matrimony. While the two acts—dissolution of empire and dissolution of marriage— existed on vastly different scales, the language used by the patriots and lawmakers to justify both was strikingly similar. Furthermore, the legitimization of divorce beyond the very strict rules of English common law helped the American legal system to sever its dependence on the English model. The theoretical legitimization of divorce as a means of ending a “tyrannical” (or sexually promiscuous) union, in other words, was ingrained in a distinctly American legal system from its onset.

The mere legality of divorce, however, did not ensure that divorce was widely available or publicly condoned after the nation’s founding. Until well into the twentieth century, couples could not divorce legally by mutual consent. While divorce laws varied widely from state to state, “fault” divorce always required that one spouse prove that the other was guilty of adultery, desertion, or some other serious failing. Until the mid-nineteenth century, an aggrieved spouse in many states had to petition his or her state legislature in the hopes of obtaining a divorce decree. Only as the number of petitions proliferated did legislators begin to move divorce cases into the courts.

The nation’s slowly rising divorce rate went largely unnoticed until the 1850s, when it became a rallying point for social critics who saw the rate as irrefutable evidence of a creeping moral decay in American life. In the 1870s and 1880s, many state legislatures made their divorce laws more stringent in (unsuccessful) attempts to decrease the number of couples eligible for divorce. Their efforts became even more urgent once a Department of Labor study in the late 1880s confirmed that the United States led the world in divorce. Interestingly, the conservative opposition to divorce rarely called for its prohibition. The potential for chaos if couples resorted to extralegal means to end their marital unions, paired with the laws’ origins in the Revolution, ensured that calls for an outright ban were muted. Plus, conservatives did not have a ready alternative to divorce for unions in which spouses flouted moral convention by committing adultery or violently assaulting their partners. The common trope of the victimized wife seeking a divorce as a last resort was too powerful an image for divorce conservatives to assail. Instead, they fought unsuccessfully for the passage of a federal divorce law that would supersede the lax laws of so-called divorce havens such as Indiana, South Dakota, and, later, Nevada.

Some men and women in the nineteenth century did support relaxed divorce laws, but their views could hardly be classified as prodivorce. Several women’s rights advocates, notably Elizabeth Cady Stanton, were in favor of divorce because it gave women a modicum of control in the face of an otherwise patriarchal institution. This stance proved divisive, however, as many other activists believed that divorce hurt women by leaving them without financial support. Other divorce supporters asserted that the availability of divorce allowed for better marriages. They pleaded in its favor, therefore, not because the availability of divorce subverted existing marriage norms, but rather because its accessibility augmented the value of marriage to American society. Their primary argument was that since the marital union was perfectible, any unions that failed to reach this high standard should be dissolved, leaving the divorced couple to pursue perfection with better-suited mates. This camp held that, at the present time, divorce was necessary but envisioned a future in which it could be eradicated. The exact details of this plan were vague, although they generally involved making it more difficult to get married. One commentator, for instance, felt that “the greatest social evil in our country is the marrying habit.”

What was truly problematic about the “marrying habit” in the minds of many Americans was not only its relationship to the rising incidence of divorce but also the perception that the wrong types of people were getting married and having children. Specifically, a significant number of the nation’s most educated women were remaining single because (among other reasons) they did not want to give up their careers—as would be expected of them—after marriage. The fight for women’s rights, as well, threatened to separate women from their traditional duties as wives and mothers. Furthermore, the birth rate among native-born, white citizens had been in a steady decline since the early nineteenth century, whereas the immigrant birth rate (considered far less desirable at the time) was quite high. President Theodore Roosevelt undoubtedly did not assuage such concerns when he popularized the idea that given present trends, native-born, white U.S. citizens were in danger of committing “race suicide.” Such rhetoric, when paired with anxieties about the divorce rate, contributed to a full-fledged sense of crisis in regard to the state of family life in the United States. Ironically, only a small percentage of Americans were getting divorced in the late nineteenth and early twentieth centuries. According to some historians there were fewer than two divorces for every thousand marriages in 1870. Certainly, many other couples created their own extralegal marital “exits,” prompted either by relationship woes or other necessity. The evidence nevertheless suggests that most Americans’ motivations for divorcing were hardly frivolous. Court records, for example, indicate that husbands and wives only sought to end their unions in extreme circumstances, such as when an offending spouse had long since disappeared, failed to provide basic necessities, or had committed adultery.

While many divorcing men and women also knew what the courts needed to hear in order to decide in their favor and may well have tailored their cases to fit such expectations, the low divorce rate nevertheless points to the serious personal and social consequences that accompanied the decision to divorce in Victorian America. At the time, after all, “evil” was the word most frequently paired with “divorce” in the popular press and in religious and legal circles. Most popular fiction, in turn, portrayed divorce as shameful and emphasized its harmful effects on individuals and society at large. The deleterious consequences of divorce were particularly evident for women. For wives without independent financial means, the infrequency of alimony allocations meant that divorce could lead to reduced circumstances or even destitution. Plus, divorce clearly represented a grave failure for any woman who embraced a Victorian identity as the moral guardian of the home, especially if her husband had succumbed to temptation and committed adultery. Many Americans believed divorced men and women to be morally suspect, and the divorced faced an uncertain social future based on their decision to end a marriage, no matter what had motivated them to do so.

The contemporary meaning of marriage is no easier to pin down and ascertain if we look at it from a societal, rather than an individual or legal, perspective. It is true that there are more public justifications for marriage from society, but marriage also has multiple potential meanings to the society that constructs and contains it. In fact, the express, explicit reasons for marriage from society’s perspective have not changed all that much over time. Some are mundane, such as the need for a certain formal record keeping and for the assignment of responsibilities and rights among persons (e.g., to facilitate property transfers at death or identify persons responsible for payment of household debts).

There are some benefits for society expressed through its interest in marriage in regard to public health. The application for a marriage license can also be the occasion for mandatory health screening or counseling on genetics. It can be used for social engineering purposes, such as to supply information on the importance of marriage or to educate couples about the purported negative impact on their children, should they have any, from any future decision to separate and divorce.

The American marital entity has an interesting lineage as a legal category. It is directly tied to one religious set of concepts and beliefs. Looking back into its legal history, we see that marriage was not created de novo as an American institution. As a legal relationship, its content and terms were drawn from British institutions that had evolved rules exemplifying rigid relationships.

In England there was a direct historic connection between the state religion and the legal treatment of intimate relationships. Marriage was a sacrament administered by the church and subject to its rules. Under the common-law system in effect in England until fairly recently (as legal institutions go), issues concerning the creation and dissolution of marriage and other aspects of family formation were left to the ecclesiastical courts. It was not until the passage of the Matrimonial Causes Act of 1857 that jurisdiction over marriage and divorce was transferred to civil courts. Consistent with the precepts of their religious approach, these courts viewed marriage as a lifelong commitment. An annulment or, failing that, desertion, was virtually the only route out of an unhappy union. The Church of England’s ecclesiastical courts could grant a divorce “from bed and board,” which allowed couples to live apart but not remarry. Divorce was theoretically available, but only through a special act of Parliament, and between 1800 and 1836, an average of three such bills of divorce were granted each year. Generally, access to divorce was limited until the late twentieth century. This view of the presumed permanence of marriage was also evident in colonial America, where divorce could be granted by a secular judiciary, but this rarely happened. In fact, prior to the mid-twentieth century in the United States, judicial divorce although increasingly more common over time than in the colonial period, was available only for “cause.” “Cause” could include adultery (in New York this was the only cause that justified divorce in 1787), as well as “impotence, adultery, intolerable severity, three years’ willful desertion, and long absence with presumption of death” (Vermont in 1798) and “gross misbehavior and wickedness in either of the parties, repugnant to and in violation of the marriage covenant”. Today in Utah you can seek a divorce on various grounds including adultery, impotence and desertion. Speak to an experienced Draper Utah divorce lawyer to know the various under which you can seek a divorce from your spouse.

An “innocent” spouse could ask the state to sever the marital tie when she or he was successful in demonstrating the “fault” of her or his mate. Fault grounds indicated there had been some egregious offense to the very marital union. States such as New York at that time permitted divorce only for very serious offenses that were considered to undermine the nature of the marital connection, such as adultery. Other states considered the amorphous category of “cruelty” to be a sufficient basis for dissolution. Colonial divorce laws varied considerably by region, with the northeastern states tending to be slightly more liberal than their southern neighbors. In the United States there was no established state religion, but the relationship between religious perceptions and beliefs about marriage and the construction of state principles regarding that connection were still evident, if attenuated. The individual states incorporated common-law concepts and definitions from the religiously shaped English rules into their laws governing family. American judges tracked the religious rhetoric of their English counterparts when considering issues involving the family. Divine laws governed family relationships, setting out the natural order for the individuals who entered them. The content of the marital relationship was also divinely structured. In what has become one of the most famous concurrences in the American legal tradition, in the 1873 Supreme Court case of Bradwell v. Illinois, Justice Bradley made what is still considered the classic statement regarding the common-law perception of the divinely determined distinct roles of husbands and wives. The organization of the traditional family in the British and American legal tradition was also patriarchal, with the husband—“head” of the family—owed obedience and domestic and sexual services from his wife. In return, he was obligated to support her and their children. The husband’s role conferred rights as well as responsibilities, including the right to punish family members. Because he bore responsibility for their actions, a husband had the right to reasonably chastise both wife and children. His support obligations also gave him a corresponding right to the earnings of his wife and children, and to control over their property.

Further, the view of marriage expressed by Justice Bradley and the divinely ordained respective positions of the spouses also limited the expectations and opportunities for married women in the larger society. The marital family’s hierarchically organized and well-defined gender roles placed the spouses in different spheres. Women, excluded from many of the public aspects of life, were perceived as appropriately dependent. As the Bradley concurrence in Bradwell expressed, their true calling was considered to be the home and family.

This ordering of domestic life was intuitive—a response to the natural dependency of women. Common law imposed disabilities on women that supported this ordering of the world. Married women were not able to own property or make contracts. In some instances they could not even be held responsible for their own torts or crimes. Their husbands, perceived as controlling them absolutely, were charged instead.

The common law expressed a structure in which the distinct specializations of the spouses complemented each other: the wage earner and the housewife; the protector and the protected; the independent and the dependent. Each spouse needed his or her complement in order to attain and maintain a whole, complete family entity, one that provided for all its members’ needs. This specialization, bringing together the head and the heart of the family in the form of husband and wife, allowed the marital family to function in a self-sufficient manner, providing both economic and domestic resources to the unit.

This unequal, if complementary, positioning of men and women within the common-law family became problematic for women when divorce became more prevalent under no-fault statutes. These statutes changed a fundamental aspect of marriage. Marriage in its common-law manifestation was considered a lifelong commitment, but no-fault divorces ushered in a revolution in our way of thinking about the permanence of the relationship of marriage. No-fault meant much easier access to divorce. In many states divorce became available on unilateral demand of one spouse even over the objection of the other that the relationship could be salvaged. Men who wanted to be free of their “faultless” wives (as determined under the previous fault divorce statutes) no longer had to bargain with those wives and buy their complicity in the divorce process through concession of property or other economic incentives.

Initiated by both wives and husbands, no-fault opened the divorce floodgate and exposed the economic vulnerability of the common-law assignment of ownership of all wages and property to the wage earner. Wives were not considered entitled to a share of property accumulated during the marriage, since they did not earn the money to buy it and typically title was in the husband’s name. As a result, women found themselves and their children destitute at divorce.

The discouragement of married women from participation in the workplace and investment in a career also had more general negative economic implications. After a divorce, women found that they had to work in the marketplace as well as in the home, yet the old vision of marriage had discouraged them from honing the skills they needed to do so. All this has changed, of course. The no-fault revolution coincided with another revolution in the way we understand the world—the gender equality movement, which ushered in massive changes in all phases of life, including marriage.

No Fault Divorce In Draper Utah

The move to no-fault divorce might have altered our view of marriage, but the gender equality revolution altered the way women perceive their societal, nonfamilial roles. It seems hard to believe that it was less than a century ago that women won important political and civil rights, such as the vote, which was achieved in 1920 with the passage of the Nineteenth Amendment. Even after women achieved the right to vote, they were still excluded from service on juries. Although the first women were summoned to jury service in 1870, as a rule, women were systematically denied or exempted from jury service for the next century, usually for reasons that were considered “benign” and “practical”. It was not until 1994, in J.E.B. v. T.B., that the Supreme Court declared that peremptory challenges based on sex violate the equal protection clause of the Fourteenth Amendment. Until recently, the common-law rule was that a woman’s domicile (essentially her legal place of residence) was always the same as her husband’s. This caused difficulty for many married women, as a person’s domicile is used in determining numerous legal entitlements, categories, and qualifications. Because a woman’s legal identity had traditionally been merged with that of her husband, her domicile was assigned based on her husband’s place of residence, and a woman had no control over this determination. As divorce laws changed and women’s destinies were less tied to the institution of marriage, the inappropriateness of this situation became more obvious. The common-law rule began to change in the 1970s, and the American Law Institute finally ratified this change in 1988.

Prenuptial Agreements

Prenuptial agreements have come to enjoy a presumption of validity, as long as they were made voluntarily and with full disclosure of financial information. Some courts still maintain the additional requirement that an agreement be substantively “fair” to both parties. Even while they do so, recognition is typically given to the changes in gender expectations. If you are planning a divorce and have a prenuptial agreement in place, consult with an experienced Draper Utah divorce law. The lawyer will review your prenuptial agreement and advise you on whether the agreement will be held valid by the court.

Child Custody And Child Support

The past few decades have witnessed a dramatic increase in the divorce rate in the United States and elsewhere, a phenomenon that reflects and influences changing social attitudes toward marriage and the family. When offspring are involved, the divorce process becomes further complicated by considerations over custody and visitation rights. And when the parents themselves cannot resolve these issues, the courts are faced with the difficult task of making a custody decision.

First, despite important differences in the amount of time they spend with their infants and young children, both fathers and mothers are significant figures in the infant’s world from a very early age. By the end of the first year, infants recognize both parents and prefer them to unfamiliar adults. By this time and increasingly during the second year, infants respond differently to each parent, reflecting the development of a rudimentary appreciation of each parent’s unique role in their world. The research indicates that there are more similarities than differences in infant responsiveness to fathers and mothers: They protest separation from either parent, delight in being reunited with them, and play comfortably in the presence of either father or mother. By all accounts, it is apparent that infants develop emotionally salient attachment relationships with each parent by the end of the first year. In short, both mother and father are “psychological parents” to their young infants, even when the father does not assume major caregiving responsibilities. There is every reason to assume that the psychological salience of each parent persists as the child grows older.

Second, even though both parents are important figures in the infant’s world, mothers and fathers differ significantly in their caretaking roles and responsibilities in most homes. Mothers typically assume basic caretaking tasks such as feeding, cleaning, dressing, soothing of distress, and preventative protection from harm. When they play with their babies, they use low-key verbally-oriented and toy-mediated games. In contrast, fathers are typically much less involved in routine caretaking tasks. Rather, they spend a greater proportion of their time engaged in play–specifically, a vigorous rough-and-tumble, physically stimulating kind of play.

The adjudication of child custody disputes raises important and interesting questions, among them the role of fathers as caregivers. For many years, courts have assumed a preference for the mother, contending that a mother’s nurturance and love constitute irreplaceable components of early socio-personality development, particularly during the “tender years.” More recently, however, judges have been using a more egalitarian “best interests of the child” guideline, in which mother and father can compete on a more equal footing for the custody of offspring. Yet this new guideline is a mixed blessing. Although it opens the door to fathers, its conceptual ambiguity permits a wider latitude of subjective judgment on the part of judges, which often results in an implicit maternal preference. The question of what are the child’s “best interests,” and how these may be served by a custody decision, is crucial if this decision-rule is to play a useful role in the custody adjudication process.

In hearing a custody dispute, a judge is faced with an unusual and difficult decision. Most legal disputes focus on the documentation of facts relevant to a case; child custody decisions entail more subjective judgments of parental caregiving competence. Furthermore, custody disputes cannot be resolved on the basis of judicial precedent. Rather, they must be addressed on a case-by-case basis, taking into consideration the unique history and circumstances of the family in question. The judge’s decision-making is further complicated by the predictive nature of the custody award. That is, he or she must consider the long-term ramifications of the decision, including the future economic and living conditions of each parent, the developmental needs of the child, and the potential availability of extrafamilial support systems. Finally, custody decisions rely heavily upon a judge’s discretionary powers in applying legislative guidelines to the particular family in question.

To be sure, most parents who divorce can agree on custody of the children without seeking judicial help. Despite the dramatic increase in the rate of divorce over the past two decades and the broadening of legislative guidelines to put parents on a more equal footing in seeking custody, fewer than 15% of the couples who divorce will proceed with a fully contested custody battle. And, of course, the overwhelming majority of custody awards are to the mother: Fewer than 10% of divorce decrees award children to the father. In many cases, fathers who receive custody do so with the consent of the noncustodial mother.

But although the proportion of disputed custody cases seems to be stable, the absolute number of disputes is increasing sharply due to the rising divorce rate. Coupled with the gradual changes in parental roles evoked, in part, by the increasing number of working mothers, it is reasonable to expect that the number of divorce petitions in which both parents want custody will continue to increase in the years to come. Therefore, it is important to clarify the guidelines by which judges resolve these disputes. The legislative guideline that currently prevails in most states–that is, awarding custody according to the “best interests of the child”–is historically the least explicit. Interestingly, English legal tradition long asserted a paternal preference, reflecting a time in which offspring were regarded as heirs to privilege and wealth and as parental property. Thus the father was viewed as the primary guardian of his legitimate children and, in the event of a dissolution of the marital bond, he assumed exclusive custodial rights. With the changes in social structure wrought by the Industrial Revolution and changes in social philosophy provoked by writers like Locke and Rousseau, this common law assumption gradually broke down. Instead, by the 19th century, both English and American law put the wife on an equal footing with her husband: Both were to receive equal consideration in a custody decision. In practice, however, this usually resulted in an implicit maternal preference, because custody decisions were based on evaluations of parental fitness and wives, as the customary initiators of divorce action, were in a better position to argue against their husbands. Concurrently, an explicit maternal preference when the children were in their “tender years” (generally speaking, under the age of seven) helped to consolidate this implicit bias for the mother in the courts. In short, changing judicial guidelines were reflecting changing social values. Childhood was increasingly viewed as a period of nurturance and education, and mothers typically assumed a major role for both. Early in the 20th century the maternal presumption became consolidated in judicial decision-making, sometimes by explicit statute but more often in the form of case law.

Jurists assumed that, except in instances when the mother was clearly unfit, it was consistently best for the child to benefit from the love and nurturance provided by the mother. They were supported in this assumption by contemporary psychoanalytic theory, which stressed the unique role of a mother’s love to early psychological development.

More recently, however, the maternal presumption has been increasingly questioned in favor of a more egalitarian guideline. Much of the impetus for this reconsideration has come from social critics who regard the maternal preference as inherently sexist and a perpetuation of traditional gender roles. The dramatic rise in the number of working mothers in recent years and the concurrent increase in demand for infant and preschool childcare services are particularly salient manifestations of the changing American family. Thus the traditional family system in which mother is a fulltime caregiver is no longer the norm, and this has undermined the rationale for an explicit preference for mother in custody disputes. In addition, of course, there are a number of instances in which an explicit maternal presumption is clearly inappropriate, such as when the father or another person has assumed sole caregiving responsibilities, or when the mother is abusive or neglectful. Finally, many critics contend that the maternal presumption focused attention on judicial evaluations of parental fitness rather than on child-centered concerns. Thus the purpose of the best interests guideline is to encourage an appraisal of the custody dispute in light of the contributions (actual and potential) of each parent to the child’s present and future needs.

Problems with the Best Interests Of The Child Guideline

This legislative intent may be significantly undermined, however, by the ambiguity concerning how the child’s “best interests” are to be determined. Judges are provided few explicit decision-rules to determine what a child’s best interests are, much less rules that take into account a child’s changing developmental needs. Even when statutes provide broad guidelines defining the child’s best interests, these guidelines are seldom very explicit and judges are offered no guidance concerning which of these interests are most important in determining custody. This leaves judges broad discretion in defining these interests, with the result that custody awards can be determined on the basis of highly subjective criteria that may vary widely on a case-by-case basis. Alternatively, many judges simply adhere to a maternal presumption despite the changed mandate. In short, one of the greatest problems with the best interests guideline is the current lack of certainty concerning how this expression should be interpreted. A fundamental question, for example, concerns which of the child’s many “interests” should predominate in a judge’s deliberations over a custody award. Fundamentally, of course, children require the basic necessities that promote physical well being: adequate nourishment, a warm, safe home environment, sufficient health care, clothing, and an interpersonal environment that is not overtly abusive or oppressive. Beyond these basic necessities, however, there is considerable controversy concerning which of the child’s other needs merit primary consideration. Is it important that the child be with the parent who has provided the most care in the past (i.e., ensure continuity of care)? What of the child’s future educational or religious training? Should jurists be concerned with the child’s “character development”? Is continuity in living circumstances important? Should the child be with the same-sex parent? To put it simply, should the child’s best interests be strictly construed to mean only the basic requirements of adequate caregiving, or should the courts be more interested in the child’s optimal development?

There is no easy answer to this question, and opinions vary widely. Some legal scholars advocate a more limited interpretation of the child’s interests in order to curtail the court’s discretionary powers in deciding child placement cases (e.g., custody, foster care, etc.). On the other hand, some experts argue that “psychological parenting” should be the primary consideration in determining child placement; that is, to whom has the child developed a lasting emotional bond? There is, in short, no clear consensus concerning what constitute the child’s primary interests in determining a custody award.

Assuming that the best interests guideline is meant to include factors other than physical well being alone, a second question concerns the limits of this construction. That is, how do we evaluate the parental caregiving practices that promote the child’s best interests? Is one parent’s warm but permissive approach preferable to another’s less affectionate limit-setting? Should judges prefer a custody arrangement that is likely to foster a strong traditional gender identity in the child? These and a range of similar questions surround most custody decisions and concern the implicit goals and values that underly a court’s preference for one parent over the other.

It is doubtful that there is much broad consensus within most Western societies concerning these child-rearing goals and practices. As with differences in lifestyle, parents vary greatly concerning the traits and characteristics they seek to develop in their children, and they employ a range of practices for achieving these goals. This diversity contributes to the heterogeneity of a society, in fact, and courts have traditionally hesitated to infringe upon parental freedom to raise their children as they prefer. Indeed, apart from those instances in which state intervention is mandated by manifest child abuse or neglect, greater concern has been voiced over the state’s overregulation of parental decision-making in areas such as education, religious training, and medical care. In short, society encourages a great deal of freedom and diversity in child-rearing goals and practices and, by and large, the courts have insured this freedom. In the adjudication of child custody disputes, however, judges frequently rely on subjective judgments of a parent’s caretaking style that are often based on personal values and beliefs. Sometimes these judgments concern the “moral climate” of the home. In some cases, a judgment is based on a parent’s occupational commitments, political affiliations, expectation of remarriage, or economic circumstances rather than his or her relationship with the child. In short, these judgments of caretaking often involve intuitive, usually unarticulated value judgments that are relative to the values and beliefs of the judge determining a custody settlement. These values are likely to reflect sociocultural and social class biases as well as religious beliefs and moral attitudes. Importantly, they usually entail judgments of parental fitness, with secondary regard for their actual or potential effects upon the child. Thus a second difficulty with the best interests guideline concerns judging the parental practices that contribute to a child’s best interests. In the absence of a prevailing social consensus, judges tend to use their own intuitive value judgments that may or may not reflect child-centered concerns.

It is important to note, however, that intuitive judgments of parental practices are not limited to jurists. Indeed, “expert testimony” from various sources, including psychiatric witnesses and social workers, has been criticized as being largely subjective and value based, and thus unreliable. In other words, any subjective assessment of a family is likely to result in speculative and unreliable judgments. Furthermore, this unreliability is especially likely when the family is under stress (as in a custody battle), when normal patterns of interaction are affected by emotional turmoil. Thus it is doubtful whether assessments of family interaction at the time of a custody dispute–by a judge or an “expert witness”–yield meaningful information about parent-child relationships. A third ambiguity in the best interests guideline concerns the time frame within which a child’s interests are appraised. Divorce presents parents and children with immediate and difficult adjustments. Should judges seek a custody arrangement that helps the child to negotiate these short-term transitions? Or should longer-term concerns take precedence if they conflict with more immediate needs? These, too, are questions of judgment about which legislative guidelines or judicial precedent offer little guidance.

Taken together, the major difficulty with the best interests guideline is the broad interpretational latitude permitted judges in deciding custody disputes. Disagreement exists concerning which of the child’s many interests should be included in a judge’s deliberations, how these interests are translated into judgments of parental child-rearing practices (and how these practices should be assessed), and whether short-term or long-term concerns should take precedence. These conceptual ambiguities thus delegate a good deal of discretionary power to judges, with the result that custody decisions may be based on implicit value judgments that are relative and thus inappropriate to legal decision-making. Of course, these interpretational problems are most acute when the child’s best interests are broadly construed, but to some extent they are inherent within any such inclusive formulation.

In view of this, some legal scholars have called the process of child custody adjudication “indeterminate”–that is, there are often no reliable, objective and legally satisfying ways of awarding custody to a parent according to the child’s best interests. Whereas some custody cases are always relatively easy to resolve (such as when one parent is abusive, or has abandoned the family, and the other parent has not), for the majority of cases there exist no generally accepted, easily applied decision-rules by which the child’s best interests may be determined fairly and objectively. The same case presented to two judges may be decided in very different ways. The indeterminacy of child custody adjudication also has important implications outside the courtroom. Legal guidelines usually serve as negotiating parameters by which the parties to a dispute can assess their relative chances of success in adjudication and modify their demands and expectations accordingly. Under the best interests rule, fathers and mothers are provided little information of this kind. Thus articulate and consistent custody guidelines are necessary both for the adjudication process and for the interpersonal bargaining that precedes it. What is the solution to judicial indeterminacy in custody cases? Some have suggested a return to more specific, all-encompassing legislative decision-rules (e.g., custody awarded to the mother if the child is age 5 or younger; custody awarded to the same-sex parent with older children). This would limit judicial discretion, but a proportion of disputes would certainly be resolved unfairly. Another proposal is for a greater emphasis on predivorce mediation to encourage parents to seek their own solution to the custody dispute short of a court battle. A third–and more radical–alternative is to decide custody disputes by some random process: in essence, a judicial coin-flip.

Such an approach would acknowledge the inherent inability of the court to make an objective, reliable custody award, and would prevent the noncustodial parent from feeling that he or she was judged to be a less adequate parent than the spouse with custody.

Short of these alternatives, it is clear that judicial decision-making in custody disputes entails highly idiosyncratic considerations that must be addressed on a case-by-case basis. The history of the family in question, the wishes of the child, the nature of the temporary custody arrangements, the quality and quantity of predivorce parental caregiving involvement, and prospective living conditions for the child with either parent are all considerations (to name a few) that should figure prominently in a custody award and that are likely to vary from one family to another. The important question, however, is whether there exists a valid overall framework within which these factors can be considered and by which further information may be requested and evaluated. In other words, judges and lawyers require some general understanding of the nature of family functioning in intact and divorced homes in order to properly interpret and weigh these considerations relevant to the child’s best interests. Operating within such a framework, jurists may be less likely to base custody decisions upon idiosyncratic and value-laden considerations. It is in providing such an overall knowledge base that psychological research may have a limited but important role in the adjudication of child custody disputes. This is particularly true concerning the role of fathers as caregivers, which is the topic of this review.

One very important factor differentiating mother-child from father-child relationships is the quantity of caretaking. In traditional homes, of course, the mother is usually relegated childcare as well as other domestic chores while fathers spend most of their day away from the home. With the reappraisal of gender roles during the last decade, one might anticipate a softening of these traditional childcare assignments within the home. Several recent studies of time use suggest, however, that fathers are still largely uninvolved in routine caretaking tasks.

Taken together, these differences in the quality and contexts of mother-infant and father-infant interaction reflect a basic difference in each parent’s role vis-à- vis the baby. In most instances, the mother is the infant’s primary caretaker, even when she is employed outside of the home. That is, she more typically provides for the baby’s basic needs–feeding, bathing, diaper-changing, soothing of distress, preventative protection from harm, and similar ministrations–as well as being a salient social partner in low-key play. In contrast, the father’s typical role as a secondary caretaker is less focused around specific caregiving activities and more focused on vigorous, physically stimulating play with the baby. Play is thus a more basic interactive context for infants with their fathers than with their mothers; in addition, different kinds of play activities also distinguish each parent. In short, infants begin to know and develop expectations for each parent in somewhat different social contexts.

Does this division of roles mean that fathers are less competent than mothers in basic caretaking tasks? Evidently not. If you are a father, speak to an experienced Draper Utah divorce lawyer for advice on how you can get custody of your children.

Fathers are competent and responsive caretakers, whether their competence is appraised in terms of the occurrence of certain caretaking behaviors or their responsiveness to infant cues. Similarities in mother-infant and father-infant nurturant and caretaking activities have been noted for parents in other cultures as well. Such findings are ironic in view of the strong tendency of fathers to eschew caretaking roles at home. In other words, fathers can be highly competent caretakers when called upon to do so, even though they seldom assume such responsibilities spontaneously. Instead, they spend a greater proportion of their time engaged in vigorous, physically active play with their infants.

Taken together, the research on mother-infant and father-infant relationships indicates that fathers are preferred as play partners from a relatively early age, and mothers are preferentially sought when infants are fatigued, alarmed, or stressed. As earlier indicated, the paternal preference is unsurprising in view of the contexts in which infants typically encounter their fathers and the kinds of exciting, physically active games fathers play. Infants seem to learn that fathers are fun to play with during the second year. Similarly, infants’ preferences for their mothers under stress are also unsurprising in view of the maternal caretaking role in most families. Mothers typically feed, bathe, clothe and, importantly, comfort their babies when the infants are distressed; infants seem to learn early on that their mothers are a source of soothing. Thus mothers and fathers differ importantly both in their caretaking roles and, it seems, in how they are perceived by the baby from an early age. Mothers as primary caregivers in most families spend a greater amount of time with their infant sons and daughters and assume greater responsibility for routine caretaking tasks, even when they also work outside of the home. Fathers as secondary caregivers spend less time with infants overall but devote a greater proportion of their time to physically vigorous, arousing play. These differences in parental involvement are manifested early in differences in infant responsiveness. Infants prefer their fathers as play partners and respond more positively to them in these situations. Under conditions of stress, however, they turn to mothers, reflecting different expectations for each parent that develop during the first year. In short, infants learn about their mothers and fathers in different contexts, and develop different expectations for them as a result.

Often a child can become a mere cipher in conflicts over custody. Finding the right balance between the claims of two separating partners is not easy. Judges have more commonly been willing to award custody of young children to mothers on the ‘tender-years’ principle: the idea that, because of the strong natural bond between mother and child, if young children cannot be with both parents, they are better off with their mother. So, while the case for women in the custody battle may be strong, it is increasingly recognized that men, too, have grievances to be addressed and that current law can disadvantage them in a number of ways. In the vast majority of cases, custody of children on divorce is awarded to women, and contact orders, largely made to men, are often broken. There are particular cases where court decisions are likely to strike anyone as totally unfair—a non-working wife who ends a marriage because of another liaison may well be awarded children, house, and most of the couple’s financial assets, notwithstanding her responsibility for the collapse of their joint family-building project and her lack of any financial input. She is free to introduce unofficially into the family structure another man to replace the natural father in the lives of her children. With the growth of these disadvantages has come the loss of many of the previous advantages of marriage for a man, as traditionally the best way of securing not only a steady sex life, but also status in the community, and a substantial and satisfactory personal project in which he could reasonably regard himself as a vital element.

Given these tensions, it is not difficult to see why the closing years of the twentieth century should have seen demands for a new approach to child custody based on the principle that, even if divorce can end relationships between adults, it is important to maintain the child–parent relationship. The presumption is that a continuing relationship with both parents will enable both of them to offer physical, emotional, and financial support to their children. The practical goal, then, becomes a matter of seeking to ensure reasonable contact for both parties. But ‘reasonable contact’ is an imprecise concept, varying from contact on alternate weekends to a more extensive and rigid division of time mapped out in terms of days or even hours per year. So joint or shared custody, in the sense of children’s time being relatively equally divided between parents, has become the arrangement of choice for some on the basis that it finally establishes the principle of equality and the equal legal standing of women and men. It may also be promoted from the child’s point of view, as it is, for example, in parts of the USA, where co-parenting may be advocated as a matter of a child’s rights—in this case, a right to live with either parent for some of the time. But the burden such arrangements impose on children should not be underestimated. It is often argued that disruption for children can be justified if it represents an escape from extremely difficult domestic situations. But, in general, the effects of divorce on children are poor and can be measured in terms of low educational achievement, difficult relationships with parents, especially fathers, and other emotional problems.

So all this leaves us with the fundamental question of who should care for the child when a couple splits up. For this we need to understand the judgement King Solomon passed. There is, though, more to the story of Solomon’s judgement than this. Faced with the equal balance of the two rival claims, Solomon intends, or at least pretends to intend, to take a sword and split the child in two. The false claimant is ready to accept this. But the true mother calls for an end to the legal battle and its dire outcome, saying that she is ready for the sake of her child to allow it to go to the other claimant. Solomon gives the child to her for, by her willingness to sacrifice her own interest, she has unintentionally demonstrated the truth of her claim.

In many ways, equal joint custody resembles the solution proposed by King Solomon—the child must live a split life between two homes, with little time or opportunity to create a place for itself in either, and much of its potential time with peers taken up by outings with a displaced parent. In these circumstances, it may be that some parents will express their love for the child by relinquishing maximum rights, asking only reasonable and modest access, in order to give the child a life of its own.

Cases involving extreme violence represent, of course, the outer limits of the way in which custody can serve the needs or preferences of parents and ignore the vulnerability of children. But, even where violence is not a factor, contact and residence rulings can be a way, deliberate or not, for one parent to exercise control over the other, making it impossible for the other parent to gather up the threads and start again, free from harassment and disruption. There are no easy answers to post-separation arrangements looked at from the point of view of the children themselves. It would be better if parents could recognize this and acknowledge that their own decision to split up means that, as far as their children are concerned, their security, home life and frame of reference for living their lives has been unpicked. If it is difficult to secure fairness for both parents, it is even more difficult.

Reconstituted Families

In practice, separations often bring into already complex situations new people, both adults and children, who have their own needs and perspectives. For, while the initial situation may be focused on the problem of how two individuals are to share their children’s lives between them, in practice one or both partners may bring someone else into the picture, posing a challenge of adjustment both for the adults and for their children. As far as the adults are concerned, it may be difficult to accept that their children are living with the person who has replaced them in their partner’s life. It will be difficult if the new mother or father is not caring properly for the children, but in some ways just as difficult if they are doing so successfully. A mother, particularly if she is not responsible for the breach, may find it very hard to accept that the woman who is responsible for it has taken over her role and formed a bond with her children. The same applies to fathers. A man, too, may find it hard to accept the reality of his children living with the man who has taken over his own role.

Custody and access are, of course, intended to protect parents’ relationships with their children and also to secure the best interests of those children. But these are difficult goals to reconcile. Even in the best of cases, children do not like to be asked to choose between their parents. Listening to the child’s voice is a worthwhile step, but no one should be deceived into thinking that that is a universal panacea. Like the apocryphal traveller whose request for advice evokes the response ‘I would not start from here’, in most cases the child does not want the split in the first place. What children most need and most want is what normal family life provides: a chance to build their own lives and relationships with their peers, with their parents in the background for support and comfort, and preferably not as judicially ordered companions for parent and child outings.

What children want, sadly they will not always get, and sometimes society itself will pay the price. But it is worth adults at least being clear about what they are doing and not deluding themselves with anodyne suggestions that their children will be happier, or at least benefit, when their aspirations for simple childhood constants are shattered and exchanged for a new life that includes mobility, fluctuating relationships, new ‘siblings’ to negotiate with, and new parental whims to accommodate. The old mantra ‘I am only staying with you for the sake of the children’ may often have been the simple truth in the past and in many cases could have been the better choice. From the child’s point of view, it may still be so. For, on the whole, children like families—the family is a child-friendly institution and only secondarily there to keep adults happy.

Child Abuse

If your spouse is abusing your child, you should seek custody of your child. Proving child abuse is difficult as the child may be scared to speak out against the abusive parent. You will require the services of an expert witness.

Although no uniform theory is available to provide consistent answers to disputed issues between conflicting parties, there should be a common goal for all professionals acting as expert witnesses. That is, all theories and expert witnesses should work toward the best interest of the child. However, different professionals may disagree as to what is in a child’s best interest. Under this premise, lawyers need to know the fundamental similarities and differences of all theories and models of child abuse and neglect such that expert witnesses can be called upon who will select the most accurate and impartial view of the child’s best interest. In short, the knowledge provided by the expert witness should serve the functions of verification, confirmation, conversion, and education in order to increase maximal judicial validity of evidence presented in court.

Responsibilities Of The Lawyer In Using Expert Witnesses

In legal proceedings dealing with victimization, the court may require concrete and comprehensive information from experts in order to establish the evidence of responsibility, causality, liability, and damages. Therefore, the lawyer involved will need to have accurate knowledge of the (1) perpetrator (e.g., intention), (2) victim (e.g. impact), (3) victimization processes (e.g., form of maltreatment), and (4) social and legal dispositions (e.g., removal of the victimized child from the abusive environment).

Resolution for these issues relies heavily on subjective explanations and interpretations of circumstantial evidence and facts. Because of the subjective nature in explanations or inferences, the experts used by the legal profession will thus generate possibly controversial and incompatible opinions about various objective phenomena of child abuse and neglect. Therefore, in dealing with the diverse theoretical backgrounds of the experts, lawyers need to have a clear understanding of evaluation criteria for assessment of expert testimony. That is, each expert should and can be characterized in terms of his/her theorization of child abuse and neglect. Since clinical and psychological testimonies are frequently based on some theories that may have no empirically verified foundations, lawyers handling of child abuse and neglect cases, with or without the assistance of other professions, should always evaluate the admissibility of expert testimony in reference to multidisciplinary theories and knowledge. Therefore, the judicial validity of future expert testimony will rely heavily on the competency and willingness of lawyers in testing its admissibility in the areas of necessity, reliability, validity, understandability, and importance.

Above all, it relies on the ability of lawyers to identify different origins of various theoretical foundations used and to differentiate their feasibilities for application to the legal issues involved.

Child Support

In regard to the state maintaining a primary interest in the dependency component of the parent-child relationship, the cases and legislation are very clear. The economics of the tie are for state determination. Husband and wife cannot negotiate child custody and support free from judicial scrutiny and approval. The state retains an interest in these arrangements and the right to assess and alter any settlement the spouses may reach upon divorce even to modify existing arrangements in the best interests of the child.

Economic or dependency issues concerning the ongoing needs of children that are addressed in the divorce context can be compared with the nonmarital situation. Historically, marriage defined the status of children in relation to their parents and the claims they could make upon or through them. The presence or absence of marriage determined which children were labeled “legitimate” or “illegitimate” and, thus, either granted or denied benefits accrued by their parents under state insurance and compensation schemes.

The U.S. Supreme Court has reduced the significance of marriage in regard to the parent-child connection. It did so first in regard to mothers when, in Levy v. Louisiana, it held that denying damages to “illegitimate” children as a result of the wrongful death of their mother is a violation of the equal protection clause of the Fourteenth Amendment. But fathers’ connection to children has also evolved so as to not require its mediation through the institution of marriage. Unmarried fathers now have rights and responsibilities for their children that were not part of the common law scheme of things. Nonmarital children are entitled to benefits historically reserved for their marital counterparts, such as parental support, workers compensation benefits, and the right to recovery in the event of a parent’s wrongful death. Such improvements recognize the reality of dependency is more important than the status of the parents’ relationship.

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Divorce Lawyer Draper Utah

Speak to an experienced Draper Utah divorce lawyer if you need sound legal advice on divorce. We can help you with temporary orders, child support, child custody, alimony, property division, mediation, negotiations, real estate, and much much more. Divorce law has come a long way since the time the first settlors setup their colonies in the United States.

On May 3, 1930, a large advertisement for Robert Z. Leonard’s film The Divorcee asked the readers of the Washington Post, “Has Love a Chance in Today’s Hot Pursuit of Pleasure?” Loosely based on Ursula Parrott’s 1929 novel Ex-Wife, the film starred Norma Shearer, who won an Oscar for her portrayal of the title character. From the opening scene in which Jerry, played by Shearer, boldly insists that she and Ted (Chester Morris) get married and “make a go of it” as equals, the filmmakers signaled that Shearer’s character was a quintessential “new woman,” committed to a form of female equality and independence defined by male standards. Jerry’s determination on this point is so strong, in fact, that upon discovering Ted’s affair with another woman three years into their marriage, she promptly retaliates by having an extramarital sexual encounter of her own. Ted, after learning of her infidelity, demands a divorce. Jerry plainly has overestimated the extent of her equality—a sentiment echoed in the advertisement when it teased: “Her sin was no greater than his—but she was a woman!”

Once again single, Jerry vows to enjoy her freedom and to keep her bed open to all men except for her ex-husband. She quickly, however, becomes dissatisfied and physically drained by her new life of sexual adventure. Escape presents itself in the form of a married friend named Paul (Conrad Nagel), who proposes to divorce his wife Dorothy (Judith Wood) so that he and Jerry can begin a new life together. Indeed, Dorothy is Jerry’s counterpoint throughout the film. Whereas Jerry is beautiful, Dorothy has been tragically disfigured in a car accident on the night of Jerry and Ted’s engagement. Jerry and Ted married for love, but Paul, who was heavily intoxicated when the accident occurred, married Dorothy only out of guilt. While Jerry accedes to Ted’s insistence of a divorce, Dorothy refuses to concede marital defeat and will not give Paul the divorce he so desperately desires. Comparing herself to Dorothy, Jerry realizes the many ways that she has wronged her own union with Ted. Jerry thus arrives, as one reviewer explained, at “the realization that her own marriage has been a failure because she has not had the same determination [as Dorothy] to see it through.” She resolves to find Ted, and the two have an emotional reunion in which they promise to make their new marriage a success.

By the conclusion of The Divorcée, Jerry—and by extension, the audience—have learned several lessons. First, Jerry’s desire for marital equality is foolish and unrealistic. The film does not criticize a sex-based double standard; rather, its message is that in trying to emulate men, women can lose sight of what is truly important: love and marriage. The pitiful Dorothy is the true female center of the film—she is not beautiful, but she appreciates the value of being married and is willing to fight for Paul. Moreover, the film says, sexual freedom does not ensure happiness, especially for women. Prior to their mutual transgressions, Jerry and Ted plainly enjoy a fulfilling sexual relationship. Jerry’s life as a wanton divorcée, however, is unsatisfying, and only a chance encounter with Paul prevents her from becoming a hardened seductress. Finally, while divorce is sometimes a necessity, it is also frequently the result of easily avoided misunderstandings. Only in reunification—a theme that understandably became a popular Hollywood ending—can Jerry and Ted rediscover their former happiness and lead constructive lives.

The Divorcée quickly became one of the “stand-out hits of the early summer season” of 1930, and popular demand extended its run throughout the nation. The media’s descriptions of the film—press coverage alternately described it as “a chapter out of modern life,” “a Metro-Goldwyn-Mayer production dealing with a great social problem,” and “the most sophisticated treatment of the question of divorce”—highlighted its varied appeal to audiences. By 1930 divorce had indeed become a reality of everyday American life. At the same time, however, many Americans were deeply anxious about what the escalating divorce rate meant for the family, women, and the very future of the nation. Such fears were fanned by an emergent group of experts who spent the first several decades of the twentieth century identifying a “crisis” in American marriage. These self-appointed experts, some from within the academy and some with little or no formal training in sociology or related fields, came from different parts of the political and ideological spectrum. They agreed, however, that marriage (particularly for the white middle class) was in a period of crucial transition and that married couples could not handle this transition effectively on their own. The general belief that marriage was in trouble was hardly new. Social critics and clergyman, in fact, had been decrying a “marriage problem” for most of the nation’s history. But these early critics had focused their efforts on convincing the American public of the indissolubility of the marital union and, if this former effort failed, of the need for uniform divorce laws in order to prevent most divorces. By the 1920s, however, this debate had grown increasingly stale and the arguments ineffective. The ostracism that had once accompanied the decision to divorce had subsided, and the voices of experts began to supplement, and in many cases replace, those of religious authorities in the national conversation about marriage in the United States.

As the nineteenth-century understanding of marriage as a duty faded, experts worked to convince Americans to take an active interest in the health of their marriages. They focused much of their attention on women, the traditional guardians of the home and the individuals deemed primarily responsible for the continuing changes in family life. Experts believed that if marriage was going to be a “companionate” venture—a relationship based on love and satisfying sexual relations—divorce was an important safety valve for husbands and wives who were trapped in loveless unions. They hoped, however, that by studying marriage in an objective manner, they could develop strategies that would slow the rising divorce rate and, more important, improve the general quality of American marriages. To this end, experts launched research studies intended to quantify marital success and taught marriage courses at universities. Some even began to experiment with a European technique known as “marriage counseling,” anticipating that they could prevent both ill-advised unions and unnecessary marital breakups. These efforts, in turn, laid the groundwork for a new understanding of what it meant to be married in the United States.

The nineteenth-century idealization of married, romantic love was a key ideological origin of this transition. Stereotypes of Victorian prudery aside, many American men and women—especially those from more privileged economic backgrounds—clearly expected to have intimate, loving relationships with their chosen mates. During courtship, they exchanged impassioned letters and expressed hopes that their fervent feelings would not subside after marriage. Once married, they expected to place their obligations to one another and to their growing families above those to their extended families and their civic responsibilities. Nineteenth-century Americans, therefore, gradually began to view marriage as a central life experience from which they could derive happiness and forge satisfying personal bonds. This ideal, of course, was often difficult to achieve. The Victorian belief in the innate differences between men and women, in particular, impeded the full realization of marital intimacy and romance. Many husbands and wives, in turn, struggled to share common experiences and interests with their spouses.

Nineteenth-century marriage advisers (primarily ministers and physicians) nevertheless regarded this new emphasis on love with a sense of trepidation. One root of their concern was the fact that many nineteenth-century Americans believed love to be an uncontrollable emotion. While they considered it to be a prerequisite for marriage, they did not necessarily believe that all love was eternal. If marital love was lost, no prescribed action could recapture the feeling. Critics, therefore, tried to inject a more practical view of marriage into discussions of the institution. They argued that love was a choice and that young married couples could take concrete steps to ensure that their unions remained happy. In print, advisers reminded their readers that if these efforts failed, their marriage vows remained binding. It was desirable, in other words, to be content—rather than miserable— while fulfilling ones’ duties. When nineteenth-century marriage advisers pointedly rejected the possibility of divorce, however, they betrayed a fear that not all Americans understood the sanctity of their marriage vows. This concern was not necessarily misplaced. Divorce, in a very limited form, had been available in the United States as early as the colonial era and spread in the years following the American Revolution. No sooner, it seemed, did Americans create a rationale for dissolving the bonds of empire than they set about creating rules for dissolving the bonds of matrimony. While the two acts—dissolution of empire and dissolution of marriage— existed on vastly different scales, the language used by the patriots and lawmakers to justify both was strikingly similar. Furthermore, the legitimization of divorce beyond the very strict rules of English common law helped the American legal system to sever its dependence on the English model. The theoretical legitimization of divorce as a means of ending a “tyrannical” (or sexually promiscuous) union, in other words, was ingrained in a distinctly American legal system from its onset.

The mere legality of divorce, however, did not ensure that divorce was widely available or publicly condoned after the nation’s founding. Until well into the twentieth century, couples could not divorce legally by mutual consent. While divorce laws varied widely from state to state, “fault” divorce always required that one spouse prove that the other was guilty of adultery, desertion, or some other serious failing. Until the mid-nineteenth century, an aggrieved spouse in many states had to petition his or her state legislature in the hopes of obtaining a divorce decree. Only as the number of petitions proliferated did legislators begin to move divorce cases into the courts.

The nation’s slowly rising divorce rate went largely unnoticed until the 1850s, when it became a rallying point for social critics who saw the rate as irrefutable evidence of a creeping moral decay in American life. In the 1870s and 1880s, many state legislatures made their divorce laws more stringent in (unsuccessful) attempts to decrease the number of couples eligible for divorce. Their efforts became even more urgent once a Department of Labor study in the late 1880s confirmed that the United States led the world in divorce. Interestingly, the conservative opposition to divorce rarely called for its prohibition. The potential for chaos if couples resorted to extralegal means to end their marital unions, paired with the laws’ origins in the Revolution, ensured that calls for an outright ban were muted. Plus, conservatives did not have a ready alternative to divorce for unions in which spouses flouted moral convention by committing adultery or violently assaulting their partners. The common trope of the victimized wife seeking a divorce as a last resort was too powerful an image for divorce conservatives to assail. Instead, they fought unsuccessfully for the passage of a federal divorce law that would supersede the lax laws of so-called divorce havens such as Indiana, South Dakota, and, later, Nevada.

Some men and women in the nineteenth century did support relaxed divorce laws, but their views could hardly be classified as prodivorce. Several women’s rights advocates, notably Elizabeth Cady Stanton, were in favor of divorce because it gave women a modicum of control in the face of an otherwise patriarchal institution. This stance proved divisive, however, as many other activists believed that divorce hurt women by leaving them without financial support. Other divorce supporters asserted that the availability of divorce allowed for better marriages. They pleaded in its favor, therefore, not because the availability of divorce subverted existing marriage norms, but rather because its accessibility augmented the value of marriage to American society. Their primary argument was that since the marital union was perfectible, any unions that failed to reach this high standard should be dissolved, leaving the divorced couple to pursue perfection with better-suited mates. This camp held that, at the present time, divorce was necessary but envisioned a future in which it could be eradicated. The exact details of this plan were vague, although they generally involved making it more difficult to get married. One commentator, for instance, felt that “the greatest social evil in our country is the marrying habit.”

What was truly problematic about the “marrying habit” in the minds of many Americans was not only its relationship to the rising incidence of divorce but also the perception that the wrong types of people were getting married and having children. Specifically, a significant number of the nation’s most educated women were remaining single because (among other reasons) they did not want to give up their careers—as would be expected of them—after marriage. The fight for women’s rights, as well, threatened to separate women from their traditional duties as wives and mothers. Furthermore, the birth rate among native-born, white citizens had been in a steady decline since the early nineteenth century, whereas the immigrant birth rate (considered far less desirable at the time) was quite high. President Theodore Roosevelt undoubtedly did not assuage such concerns when he popularized the idea that given present trends, native-born, white U.S. citizens were in danger of committing “race suicide.” Such rhetoric, when paired with anxieties about the divorce rate, contributed to a full-fledged sense of crisis in regard to the state of family life in the United States. Ironically, only a small percentage of Americans were getting divorced in the late nineteenth and early twentieth centuries. According to some historians there were fewer than two divorces for every thousand marriages in 1870. Certainly, many other couples created their own extralegal marital “exits,” prompted either by relationship woes or other necessity. The evidence nevertheless suggests that most Americans’ motivations for divorcing were hardly frivolous. Court records, for example, indicate that husbands and wives only sought to end their unions in extreme circumstances, such as when an offending spouse had long since disappeared, failed to provide basic necessities, or had committed adultery.

While many divorcing men and women also knew what the courts needed to hear in order to decide in their favor and may well have tailored their cases to fit such expectations, the low divorce rate nevertheless points to the serious personal and social consequences that accompanied the decision to divorce in Victorian America. At the time, after all, “evil” was the word most frequently paired with “divorce” in the popular press and in religious and legal circles. Most popular fiction, in turn, portrayed divorce as shameful and emphasized its harmful effects on individuals and society at large. The deleterious consequences of divorce were particularly evident for women. For wives without independent financial means, the infrequency of alimony allocations meant that divorce could lead to reduced circumstances or even destitution. Plus, divorce clearly represented a grave failure for any woman who embraced a Victorian identity as the moral guardian of the home, especially if her husband had succumbed to temptation and committed adultery. Many Americans believed divorced men and women to be morally suspect, and the divorced faced an uncertain social future based on their decision to end a marriage, no matter what had motivated them to do so.

The contemporary meaning of marriage is no easier to pin down and ascertain if we look at it from a societal, rather than an individual or legal, perspective. It is true that there are more public justifications for marriage from society, but marriage also has multiple potential meanings to the society that constructs and contains it. In fact, the express, explicit reasons for marriage from society’s perspective have not changed all that much over time. Some are mundane, such as the need for a certain formal record keeping and for the assignment of responsibilities and rights among persons (e.g., to facilitate property transfers at death or identify persons responsible for payment of household debts).

There are some benefits for society expressed through its interest in marriage in regard to public health. The application for a marriage license can also be the occasion for mandatory health screening or counseling on genetics. It can be used for social engineering purposes, such as to supply information on the importance of marriage or to educate couples about the purported negative impact on their children, should they have any, from any future decision to separate and divorce.

The American marital entity has an interesting lineage as a legal category. It is directly tied to one religious set of concepts and beliefs. Looking back into its legal history, we see that marriage was not created de novo as an American institution. As a legal relationship, its content and terms were drawn from British institutions that had evolved rules exemplifying rigid relationships.

In England there was a direct historic connection between the state religion and the legal treatment of intimate relationships. Marriage was a sacrament administered by the church and subject to its rules. Under the common-law system in effect in England until fairly recently (as legal institutions go), issues concerning the creation and dissolution of marriage and other aspects of family formation were left to the ecclesiastical courts. It was not until the passage of the Matrimonial Causes Act of 1857 that jurisdiction over marriage and divorce was transferred to civil courts. Consistent with the precepts of their religious approach, these courts viewed marriage as a lifelong commitment. An annulment or, failing that, desertion, was virtually the only route out of an unhappy union. The Church of England’s ecclesiastical courts could grant a divorce “from bed and board,” which allowed couples to live apart but not remarry. Divorce was theoretically available, but only through a special act of Parliament, and between 1800 and 1836, an average of three such bills of divorce were granted each year. Generally, access to divorce was limited until the late twentieth century. This view of the presumed permanence of marriage was also evident in colonial America, where divorce could be granted by a secular judiciary, but this rarely happened. In fact, prior to the mid-twentieth century in the United States, judicial divorce although increasingly more common over time than in the colonial period, was available only for “cause.” “Cause” could include adultery (in New York this was the only cause that justified divorce in 1787), as well as “impotence, adultery, intolerable severity, three years’ willful desertion, and long absence with presumption of death” (Vermont in 1798) and “gross misbehavior and wickedness in either of the parties, repugnant to and in violation of the marriage covenant”. Today in Utah you can seek a divorce on various grounds including adultery, impotence and desertion. Speak to an experienced Draper Utah divorce lawyer to know the various under which you can seek a divorce from your spouse.

An “innocent” spouse could ask the state to sever the marital tie when she or he was successful in demonstrating the “fault” of her or his mate. Fault grounds indicated there had been some egregious offense to the very marital union. States such as New York at that time permitted divorce only for very serious offenses that were considered to undermine the nature of the marital connection, such as adultery. Other states considered the amorphous category of “cruelty” to be a sufficient basis for dissolution. Colonial divorce laws varied considerably by region, with the northeastern states tending to be slightly more liberal than their southern neighbors. In the United States there was no established state religion, but the relationship between religious perceptions and beliefs about marriage and the construction of state principles regarding that connection were still evident, if attenuated. The individual states incorporated common-law concepts and definitions from the religiously shaped English rules into their laws governing family. American judges tracked the religious rhetoric of their English counterparts when considering issues involving the family. Divine laws governed family relationships, setting out the natural order for the individuals who entered them. The content of the marital relationship was also divinely structured. In what has become one of the most famous concurrences in the American legal tradition, in the 1873 Supreme Court case of Bradwell v. Illinois, Justice Bradley made what is still considered the classic statement regarding the common-law perception of the divinely determined distinct roles of husbands and wives. The organization of the traditional family in the British and American legal tradition was also patriarchal, with the husband—“head” of the family—owed obedience and domestic and sexual services from his wife. In return, he was obligated to support her and their children. The husband’s role conferred rights as well as responsibilities, including the right to punish family members. Because he bore responsibility for their actions, a husband had the right to reasonably chastise both wife and children. His support obligations also gave him a corresponding right to the earnings of his wife and children, and to control over their property.

Further, the view of marriage expressed by Justice Bradley and the divinely ordained respective positions of the spouses also limited the expectations and opportunities for married women in the larger society. The marital family’s hierarchically organized and well-defined gender roles placed the spouses in different spheres. Women, excluded from many of the public aspects of life, were perceived as appropriately dependent. As the Bradley concurrence in Bradwell expressed, their true calling was considered to be the home and family.

This ordering of domestic life was intuitive—a response to the natural dependency of women. Common law imposed disabilities on women that supported this ordering of the world. Married women were not able to own property or make contracts. In some instances they could not even be held responsible for their own torts or crimes. Their husbands, perceived as controlling them absolutely, were charged instead.

The common law expressed a structure in which the distinct specializations of the spouses complemented each other: the wage earner and the housewife; the protector and the protected; the independent and the dependent. Each spouse needed his or her complement in order to attain and maintain a whole, complete family entity, one that provided for all its members’ needs. This specialization, bringing together the head and the heart of the family in the form of husband and wife, allowed the marital family to function in a self-sufficient manner, providing both economic and domestic resources to the unit.

This unequal, if complementary, positioning of men and women within the common-law family became problematic for women when divorce became more prevalent under no-fault statutes. These statutes changed a fundamental aspect of marriage. Marriage in its common-law manifestation was considered a lifelong commitment, but no-fault divorces ushered in a revolution in our way of thinking about the permanence of the relationship of marriage. No-fault meant much easier access to divorce. In many states divorce became available on unilateral demand of one spouse even over the objection of the other that the relationship could be salvaged. Men who wanted to be free of their “faultless” wives (as determined under the previous fault divorce statutes) no longer had to bargain with those wives and buy their complicity in the divorce process through concession of property or other economic incentives.

Initiated by both wives and husbands, no-fault opened the divorce floodgate and exposed the economic vulnerability of the common-law assignment of ownership of all wages and property to the wage earner. Wives were not considered entitled to a share of property accumulated during the marriage, since they did not earn the money to buy it and typically title was in the husband’s name. As a result, women found themselves and their children destitute at divorce.

The discouragement of married women from participation in the workplace and investment in a career also had more general negative economic implications. After a divorce, women found that they had to work in the marketplace as well as in the home, yet the old vision of marriage had discouraged them from honing the skills they needed to do so. All this has changed, of course. The no-fault revolution coincided with another revolution in the way we understand the world—the gender equality movement, which ushered in massive changes in all phases of life, including marriage.

No Fault Divorce In Draper Utah

The move to no-fault divorce might have altered our view of marriage, but the gender equality revolution altered the way women perceive their societal, nonfamilial roles. It seems hard to believe that it was less than a century ago that women won important political and civil rights, such as the vote, which was achieved in 1920 with the passage of the Nineteenth Amendment. Even after women achieved the right to vote, they were still excluded from service on juries. Although the first women were summoned to jury service in 1870, as a rule, women were systematically denied or exempted from jury service for the next century, usually for reasons that were considered “benign” and “practical”. It was not until 1994, in J.E.B. v. T.B., that the Supreme Court declared that peremptory challenges based on sex violate the equal protection clause of the Fourteenth Amendment. Until recently, the common-law rule was that a woman’s domicile (essentially her legal place of residence) was always the same as her husband’s. This caused difficulty for many married women, as a person’s domicile is used in determining numerous legal entitlements, categories, and qualifications. Because a woman’s legal identity had traditionally been merged with that of her husband, her domicile was assigned based on her husband’s place of residence, and a woman had no control over this determination. As divorce laws changed and women’s destinies were less tied to the institution of marriage, the inappropriateness of this situation became more obvious. The common-law rule began to change in the 1970s, and the American Law Institute finally ratified this change in 1988.

Prenuptial Agreements

Prenuptial agreements have come to enjoy a presumption of validity, as long as they were made voluntarily and with full disclosure of financial information. Some courts still maintain the additional requirement that an agreement be substantively “fair” to both parties. Even while they do so, recognition is typically given to the changes in gender expectations. If you are planning a divorce and have a prenuptial agreement in place, consult with an experienced Draper Utah divorce law. The lawyer will review your prenuptial agreement and advise you on whether the agreement will be held valid by the court.

Child Custody And Child Support

The past few decades have witnessed a dramatic increase in the divorce rate in the United States and elsewhere, a phenomenon that reflects and influences changing social attitudes toward marriage and the family. When offspring are involved, the divorce process becomes further complicated by considerations over custody and visitation rights. And when the parents themselves cannot resolve these issues, the courts are faced with the difficult task of making a custody decision.

First, despite important differences in the amount of time they spend with their infants and young children, both fathers and mothers are significant figures in the infant’s world from a very early age. By the end of the first year, infants recognize both parents and prefer them to unfamiliar adults. By this time and increasingly during the second year, infants respond differently to each parent, reflecting the development of a rudimentary appreciation of each parent’s unique role in their world. The research indicates that there are more similarities than differences in infant responsiveness to fathers and mothers: They protest separation from either parent, delight in being reunited with them, and play comfortably in the presence of either father or mother. By all accounts, it is apparent that infants develop emotionally salient attachment relationships with each parent by the end of the first year. In short, both mother and father are “psychological parents” to their young infants, even when the father does not assume major caregiving responsibilities. There is every reason to assume that the psychological salience of each parent persists as the child grows older.

Second, even though both parents are important figures in the infant’s world, mothers and fathers differ significantly in their caretaking roles and responsibilities in most homes. Mothers typically assume basic caretaking tasks such as feeding, cleaning, dressing, soothing of distress, and preventative protection from harm. When they play with their babies, they use low-key verbally-oriented and toy-mediated games. In contrast, fathers are typically much less involved in routine caretaking tasks. Rather, they spend a greater proportion of their time engaged in play–specifically, a vigorous rough-and-tumble, physically stimulating kind of play.

The adjudication of child custody disputes raises important and interesting questions, among them the role of fathers as caregivers. For many years, courts have assumed a preference for the mother, contending that a mother’s nurturance and love constitute irreplaceable components of early socio-personality development, particularly during the “tender years.” More recently, however, judges have been using a more egalitarian “best interests of the child” guideline, in which mother and father can compete on a more equal footing for the custody of offspring. Yet this new guideline is a mixed blessing. Although it opens the door to fathers, its conceptual ambiguity permits a wider latitude of subjective judgment on the part of judges, which often results in an implicit maternal preference. The question of what are the child’s “best interests,” and how these may be served by a custody decision, is crucial if this decision-rule is to play a useful role in the custody adjudication process.

In hearing a custody dispute, a judge is faced with an unusual and difficult decision. Most legal disputes focus on the documentation of facts relevant to a case; child custody decisions entail more subjective judgments of parental caregiving competence. Furthermore, custody disputes cannot be resolved on the basis of judicial precedent. Rather, they must be addressed on a case-by-case basis, taking into consideration the unique history and circumstances of the family in question. The judge’s decision-making is further complicated by the predictive nature of the custody award. That is, he or she must consider the long-term ramifications of the decision, including the future economic and living conditions of each parent, the developmental needs of the child, and the potential availability of extrafamilial support systems. Finally, custody decisions rely heavily upon a judge’s discretionary powers in applying legislative guidelines to the particular family in question.

To be sure, most parents who divorce can agree on custody of the children without seeking judicial help. Despite the dramatic increase in the rate of divorce over the past two decades and the broadening of legislative guidelines to put parents on a more equal footing in seeking custody, fewer than 15% of the couples who divorce will proceed with a fully contested custody battle. And, of course, the overwhelming majority of custody awards are to the mother: Fewer than 10% of divorce decrees award children to the father. In many cases, fathers who receive custody do so with the consent of the noncustodial mother.

But although the proportion of disputed custody cases seems to be stable, the absolute number of disputes is increasing sharply due to the rising divorce rate. Coupled with the gradual changes in parental roles evoked, in part, by the increasing number of working mothers, it is reasonable to expect that the number of divorce petitions in which both parents want custody will continue to increase in the years to come. Therefore, it is important to clarify the guidelines by which judges resolve these disputes. The legislative guideline that currently prevails in most states–that is, awarding custody according to the “best interests of the child”–is historically the least explicit. Interestingly, English legal tradition long asserted a paternal preference, reflecting a time in which offspring were regarded as heirs to privilege and wealth and as parental property. Thus the father was viewed as the primary guardian of his legitimate children and, in the event of a dissolution of the marital bond, he assumed exclusive custodial rights. With the changes in social structure wrought by the Industrial Revolution and changes in social philosophy provoked by writers like Locke and Rousseau, this common law assumption gradually broke down. Instead, by the 19th century, both English and American law put the wife on an equal footing with her husband: Both were to receive equal consideration in a custody decision. In practice, however, this usually resulted in an implicit maternal preference, because custody decisions were based on evaluations of parental fitness and wives, as the customary initiators of divorce action, were in a better position to argue against their husbands. Concurrently, an explicit maternal preference when the children were in their “tender years” (generally speaking, under the age of seven) helped to consolidate this implicit bias for the mother in the courts. In short, changing judicial guidelines were reflecting changing social values. Childhood was increasingly viewed as a period of nurturance and education, and mothers typically assumed a major role for both. Early in the 20th century the maternal presumption became consolidated in judicial decision-making, sometimes by explicit statute but more often in the form of case law.

Jurists assumed that, except in instances when the mother was clearly unfit, it was consistently best for the child to benefit from the love and nurturance provided by the mother. They were supported in this assumption by contemporary psychoanalytic theory, which stressed the unique role of a mother’s love to early psychological development.

More recently, however, the maternal presumption has been increasingly questioned in favor of a more egalitarian guideline. Much of the impetus for this reconsideration has come from social critics who regard the maternal preference as inherently sexist and a perpetuation of traditional gender roles. The dramatic rise in the number of working mothers in recent years and the concurrent increase in demand for infant and preschool childcare services are particularly salient manifestations of the changing American family. Thus the traditional family system in which mother is a fulltime caregiver is no longer the norm, and this has undermined the rationale for an explicit preference for mother in custody disputes. In addition, of course, there are a number of instances in which an explicit maternal presumption is clearly inappropriate, such as when the father or another person has assumed sole caregiving responsibilities, or when the mother is abusive or neglectful. Finally, many critics contend that the maternal presumption focused attention on judicial evaluations of parental fitness rather than on child-centered concerns. Thus the purpose of the best interests guideline is to encourage an appraisal of the custody dispute in light of the contributions (actual and potential) of each parent to the child’s present and future needs.

Problems with the Best Interests Of The Child Guideline

This legislative intent may be significantly undermined, however, by the ambiguity concerning how the child’s “best interests” are to be determined. Judges are provided few explicit decision-rules to determine what a child’s best interests are, much less rules that take into account a child’s changing developmental needs. Even when statutes provide broad guidelines defining the child’s best interests, these guidelines are seldom very explicit and judges are offered no guidance concerning which of these interests are most important in determining custody. This leaves judges broad discretion in defining these interests, with the result that custody awards can be determined on the basis of highly subjective criteria that may vary widely on a case-by-case basis. Alternatively, many judges simply adhere to a maternal presumption despite the changed mandate. In short, one of the greatest problems with the best interests guideline is the current lack of certainty concerning how this expression should be interpreted. A fundamental question, for example, concerns which of the child’s many “interests” should predominate in a judge’s deliberations over a custody award. Fundamentally, of course, children require the basic necessities that promote physical well being: adequate nourishment, a warm, safe home environment, sufficient health care, clothing, and an interpersonal environment that is not overtly abusive or oppressive. Beyond these basic necessities, however, there is considerable controversy concerning which of the child’s other needs merit primary consideration. Is it important that the child be with the parent who has provided the most care in the past (i.e., ensure continuity of care)? What of the child’s future educational or religious training? Should jurists be concerned with the child’s “character development”? Is continuity in living circumstances important? Should the child be with the same-sex parent? To put it simply, should the child’s best interests be strictly construed to mean only the basic requirements of adequate caregiving, or should the courts be more interested in the child’s optimal development?

There is no easy answer to this question, and opinions vary widely. Some legal scholars advocate a more limited interpretation of the child’s interests in order to curtail the court’s discretionary powers in deciding child placement cases (e.g., custody, foster care, etc.). On the other hand, some experts argue that “psychological parenting” should be the primary consideration in determining child placement; that is, to whom has the child developed a lasting emotional bond? There is, in short, no clear consensus concerning what constitute the child’s primary interests in determining a custody award.

Assuming that the best interests guideline is meant to include factors other than physical well being alone, a second question concerns the limits of this construction. That is, how do we evaluate the parental caregiving practices that promote the child’s best interests? Is one parent’s warm but permissive approach preferable to another’s less affectionate limit-setting? Should judges prefer a custody arrangement that is likely to foster a strong traditional gender identity in the child? These and a range of similar questions surround most custody decisions and concern the implicit goals and values that underly a court’s preference for one parent over the other.

It is doubtful that there is much broad consensus within most Western societies concerning these child-rearing goals and practices. As with differences in lifestyle, parents vary greatly concerning the traits and characteristics they seek to develop in their children, and they employ a range of practices for achieving these goals. This diversity contributes to the heterogeneity of a society, in fact, and courts have traditionally hesitated to infringe upon parental freedom to raise their children as they prefer. Indeed, apart from those instances in which state intervention is mandated by manifest child abuse or neglect, greater concern has been voiced over the state’s overregulation of parental decision-making in areas such as education, religious training, and medical care. In short, society encourages a great deal of freedom and diversity in child-rearing goals and practices and, by and large, the courts have insured this freedom. In the adjudication of child custody disputes, however, judges frequently rely on subjective judgments of a parent’s caretaking style that are often based on personal values and beliefs. Sometimes these judgments concern the “moral climate” of the home. In some cases, a judgment is based on a parent’s occupational commitments, political affiliations, expectation of remarriage, or economic circumstances rather than his or her relationship with the child. In short, these judgments of caretaking often involve intuitive, usually unarticulated value judgments that are relative to the values and beliefs of the judge determining a custody settlement. These values are likely to reflect sociocultural and social class biases as well as religious beliefs and moral attitudes. Importantly, they usually entail judgments of parental fitness, with secondary regard for their actual or potential effects upon the child. Thus a second difficulty with the best interests guideline concerns judging the parental practices that contribute to a child’s best interests. In the absence of a prevailing social consensus, judges tend to use their own intuitive value judgments that may or may not reflect child-centered concerns.

It is important to note, however, that intuitive judgments of parental practices are not limited to jurists. Indeed, “expert testimony” from various sources, including psychiatric witnesses and social workers, has been criticized as being largely subjective and value based, and thus unreliable. In other words, any subjective assessment of a family is likely to result in speculative and unreliable judgments. Furthermore, this unreliability is especially likely when the family is under stress (as in a custody battle), when normal patterns of interaction are affected by emotional turmoil. Thus it is doubtful whether assessments of family interaction at the time of a custody dispute–by a judge or an “expert witness”–yield meaningful information about parent-child relationships. A third ambiguity in the best interests guideline concerns the time frame within which a child’s interests are appraised. Divorce presents parents and children with immediate and difficult adjustments. Should judges seek a custody arrangement that helps the child to negotiate these short-term transitions? Or should longer-term concerns take precedence if they conflict with more immediate needs? These, too, are questions of judgment about which legislative guidelines or judicial precedent offer little guidance.

Taken together, the major difficulty with the best interests guideline is the broad interpretational latitude permitted judges in deciding custody disputes. Disagreement exists concerning which of the child’s many interests should be included in a judge’s deliberations, how these interests are translated into judgments of parental child-rearing practices (and how these practices should be assessed), and whether short-term or long-term concerns should take precedence. These conceptual ambiguities thus delegate a good deal of discretionary power to judges, with the result that custody decisions may be based on implicit value judgments that are relative and thus inappropriate to legal decision-making. Of course, these interpretational problems are most acute when the child’s best interests are broadly construed, but to some extent they are inherent within any such inclusive formulation.

In view of this, some legal scholars have called the process of child custody adjudication “indeterminate”–that is, there are often no reliable, objective and legally satisfying ways of awarding custody to a parent according to the child’s best interests. Whereas some custody cases are always relatively easy to resolve (such as when one parent is abusive, or has abandoned the family, and the other parent has not), for the majority of cases there exist no generally accepted, easily applied decision-rules by which the child’s best interests may be determined fairly and objectively. The same case presented to two judges may be decided in very different ways. The indeterminacy of child custody adjudication also has important implications outside the courtroom. Legal guidelines usually serve as negotiating parameters by which the parties to a dispute can assess their relative chances of success in adjudication and modify their demands and expectations accordingly. Under the best interests rule, fathers and mothers are provided little information of this kind. Thus articulate and consistent custody guidelines are necessary both for the adjudication process and for the interpersonal bargaining that precedes it. What is the solution to judicial indeterminacy in custody cases? Some have suggested a return to more specific, all-encompassing legislative decision-rules (e.g., custody awarded to the mother if the child is age 5 or younger; custody awarded to the same-sex parent with older children). This would limit judicial discretion, but a proportion of disputes would certainly be resolved unfairly. Another proposal is for a greater emphasis on predivorce mediation to encourage parents to seek their own solution to the custody dispute short of a court battle. A third–and more radical–alternative is to decide custody disputes by some random process: in essence, a judicial coin-flip.

Such an approach would acknowledge the inherent inability of the court to make an objective, reliable custody award, and would prevent the noncustodial parent from feeling that he or she was judged to be a less adequate parent than the spouse with custody.

Short of these alternatives, it is clear that judicial decision-making in custody disputes entails highly idiosyncratic considerations that must be addressed on a case-by-case basis. The history of the family in question, the wishes of the child, the nature of the temporary custody arrangements, the quality and quantity of predivorce parental caregiving involvement, and prospective living conditions for the child with either parent are all considerations (to name a few) that should figure prominently in a custody award and that are likely to vary from one family to another. The important question, however, is whether there exists a valid overall framework within which these factors can be considered and by which further information may be requested and evaluated. In other words, judges and lawyers require some general understanding of the nature of family functioning in intact and divorced homes in order to properly interpret and weigh these considerations relevant to the child’s best interests. Operating within such a framework, jurists may be less likely to base custody decisions upon idiosyncratic and value-laden considerations. It is in providing such an overall knowledge base that psychological research may have a limited but important role in the adjudication of child custody disputes. This is particularly true concerning the role of fathers as caregivers, which is the topic of this review.

One very important factor differentiating mother-child from father-child relationships is the quantity of caretaking. In traditional homes, of course, the mother is usually relegated childcare as well as other domestic chores while fathers spend most of their day away from the home. With the reappraisal of gender roles during the last decade, one might anticipate a softening of these traditional childcare assignments within the home. Several recent studies of time use suggest, however, that fathers are still largely uninvolved in routine caretaking tasks.

Taken together, these differences in the quality and contexts of mother-infant and father-infant interaction reflect a basic difference in each parent’s role vis-à- vis the baby. In most instances, the mother is the infant’s primary caretaker, even when she is employed outside of the home. That is, she more typically provides for the baby’s basic needs–feeding, bathing, diaper-changing, soothing of distress, preventative protection from harm, and similar ministrations–as well as being a salient social partner in low-key play. In contrast, the father’s typical role as a secondary caretaker is less focused around specific caregiving activities and more focused on vigorous, physically stimulating play with the baby. Play is thus a more basic interactive context for infants with their fathers than with their mothers; in addition, different kinds of play activities also distinguish each parent. In short, infants begin to know and develop expectations for each parent in somewhat different social contexts.

Does this division of roles mean that fathers are less competent than mothers in basic caretaking tasks? Evidently not. If you are a father, speak to an experienced Draper Utah divorce lawyer for advice on how you can get custody of your children.

Fathers are competent and responsive caretakers, whether their competence is appraised in terms of the occurrence of certain caretaking behaviors or their responsiveness to infant cues. Similarities in mother-infant and father-infant nurturant and caretaking activities have been noted for parents in other cultures as well. Such findings are ironic in view of the strong tendency of fathers to eschew caretaking roles at home. In other words, fathers can be highly competent caretakers when called upon to do so, even though they seldom assume such responsibilities spontaneously. Instead, they spend a greater proportion of their time engaged in vigorous, physically active play with their infants.

Taken together, the research on mother-infant and father-infant relationships indicates that fathers are preferred as play partners from a relatively early age, and mothers are preferentially sought when infants are fatigued, alarmed, or stressed. As earlier indicated, the paternal preference is unsurprising in view of the contexts in which infants typically encounter their fathers and the kinds of exciting, physically active games fathers play. Infants seem to learn that fathers are fun to play with during the second year. Similarly, infants’ preferences for their mothers under stress are also unsurprising in view of the maternal caretaking role in most families. Mothers typically feed, bathe, clothe and, importantly, comfort their babies when the infants are distressed; infants seem to learn early on that their mothers are a source of soothing. Thus mothers and fathers differ importantly both in their caretaking roles and, it seems, in how they are perceived by the baby from an early age. Mothers as primary caregivers in most families spend a greater amount of time with their infant sons and daughters and assume greater responsibility for routine caretaking tasks, even when they also work outside of the home. Fathers as secondary caregivers spend less time with infants overall but devote a greater proportion of their time to physically vigorous, arousing play. These differences in parental involvement are manifested early in differences in infant responsiveness. Infants prefer their fathers as play partners and respond more positively to them in these situations. Under conditions of stress, however, they turn to mothers, reflecting different expectations for each parent that develop during the first year. In short, infants learn about their mothers and fathers in different contexts, and develop different expectations for them as a result.

Often a child can become a mere cipher in conflicts over custody. Finding the right balance between the claims of two separating partners is not easy. Judges have more commonly been willing to award custody of young children to mothers on the ‘tender-years’ principle: the idea that, because of the strong natural bond between mother and child, if young children cannot be with both parents, they are better off with their mother. So, while the case for women in the custody battle may be strong, it is increasingly recognized that men, too, have grievances to be addressed and that current law can disadvantage them in a number of ways. In the vast majority of cases, custody of children on divorce is awarded to women, and contact orders, largely made to men, are often broken. There are particular cases where court decisions are likely to strike anyone as totally unfair—a non-working wife who ends a marriage because of another liaison may well be awarded children, house, and most of the couple’s financial assets, notwithstanding her responsibility for the collapse of their joint family-building project and her lack of any financial input. She is free to introduce unofficially into the family structure another man to replace the natural father in the lives of her children. With the growth of these disadvantages has come the loss of many of the previous advantages of marriage for a man, as traditionally the best way of securing not only a steady sex life, but also status in the community, and a substantial and satisfactory personal project in which he could reasonably regard himself as a vital element.

Given these tensions, it is not difficult to see why the closing years of the twentieth century should have seen demands for a new approach to child custody based on the principle that, even if divorce can end relationships between adults, it is important to maintain the child–parent relationship. The presumption is that a continuing relationship with both parents will enable both of them to offer physical, emotional, and financial support to their children. The practical goal, then, becomes a matter of seeking to ensure reasonable contact for both parties. But ‘reasonable contact’ is an imprecise concept, varying from contact on alternate weekends to a more extensive and rigid division of time mapped out in terms of days or even hours per year. So joint or shared custody, in the sense of children’s time being relatively equally divided between parents, has become the arrangement of choice for some on the basis that it finally establishes the principle of equality and the equal legal standing of women and men. It may also be promoted from the child’s point of view, as it is, for example, in parts of the USA, where co-parenting may be advocated as a matter of a child’s rights—in this case, a right to live with either parent for some of the time. But the burden such arrangements impose on children should not be underestimated. It is often argued that disruption for children can be justified if it represents an escape from extremely difficult domestic situations. But, in general, the effects of divorce on children are poor and can be measured in terms of low educational achievement, difficult relationships with parents, especially fathers, and other emotional problems.

So all this leaves us with the fundamental question of who should care for the child when a couple splits up. For this we need to understand the judgement King Solomon passed. There is, though, more to the story of Solomon’s judgement than this. Faced with the equal balance of the two rival claims, Solomon intends, or at least pretends to intend, to take a sword and split the child in two. The false claimant is ready to accept this. But the true mother calls for an end to the legal battle and its dire outcome, saying that she is ready for the sake of her child to allow it to go to the other claimant. Solomon gives the child to her for, by her willingness to sacrifice her own interest, she has unintentionally demonstrated the truth of her claim.

In many ways, equal joint custody resembles the solution proposed by King Solomon—the child must live a split life between two homes, with little time or opportunity to create a place for itself in either, and much of its potential time with peers taken up by outings with a displaced parent. In these circumstances, it may be that some parents will express their love for the child by relinquishing maximum rights, asking only reasonable and modest access, in order to give the child a life of its own.

Cases involving extreme violence represent, of course, the outer limits of the way in which custody can serve the needs or preferences of parents and ignore the vulnerability of children. But, even where violence is not a factor, contact and residence rulings can be a way, deliberate or not, for one parent to exercise control over the other, making it impossible for the other parent to gather up the threads and start again, free from harassment and disruption. There are no easy answers to post-separation arrangements looked at from the point of view of the children themselves. It would be better if parents could recognize this and acknowledge that their own decision to split up means that, as far as their children are concerned, their security, home life and frame of reference for living their lives has been unpicked. If it is difficult to secure fairness for both parents, it is even more difficult.

Reconstituted Families

In practice, separations often bring into already complex situations new people, both adults and children, who have their own needs and perspectives. For, while the initial situation may be focused on the problem of how two individuals are to share their children’s lives between them, in practice one or both partners may bring someone else into the picture, posing a challenge of adjustment both for the adults and for their children. As far as the adults are concerned, it may be difficult to accept that their children are living with the person who has replaced them in their partner’s life. It will be difficult if the new mother or father is not caring properly for the children, but in some ways just as difficult if they are doing so successfully. A mother, particularly if she is not responsible for the breach, may find it very hard to accept that the woman who is responsible for it has taken over her role and formed a bond with her children. The same applies to fathers. A man, too, may find it hard to accept the reality of his children living with the man who has taken over his own role.

Custody and access are, of course, intended to protect parents’ relationships with their children and also to secure the best interests of those children. But these are difficult goals to reconcile. Even in the best of cases, children do not like to be asked to choose between their parents. Listening to the child’s voice is a worthwhile step, but no one should be deceived into thinking that that is a universal panacea. Like the apocryphal traveller whose request for advice evokes the response ‘I would not start from here’, in most cases the child does not want the split in the first place. What children most need and most want is what normal family life provides: a chance to build their own lives and relationships with their peers, with their parents in the background for support and comfort, and preferably not as judicially ordered companions for parent and child outings.

What children want, sadly they will not always get, and sometimes society itself will pay the price. But it is worth adults at least being clear about what they are doing and not deluding themselves with anodyne suggestions that their children will be happier, or at least benefit, when their aspirations for simple childhood constants are shattered and exchanged for a new life that includes mobility, fluctuating relationships, new ‘siblings’ to negotiate with, and new parental whims to accommodate. The old mantra ‘I am only staying with you for the sake of the children’ may often have been the simple truth in the past and in many cases could have been the better choice. From the child’s point of view, it may still be so. For, on the whole, children like families—the family is a child-friendly institution and only secondarily there to keep adults happy.

Child Abuse

If your spouse is abusing your child, you should seek custody of your child. Proving child abuse is difficult as the child may be scared to speak out against the abusive parent. You will require the services of an expert witness.

Although no uniform theory is available to provide consistent answers to disputed issues between conflicting parties, there should be a common goal for all professionals acting as expert witnesses. That is, all theories and expert witnesses should work toward the best interest of the child. However, different professionals may disagree as to what is in a child’s best interest. Under this premise, lawyers need to know the fundamental similarities and differences of all theories and models of child abuse and neglect such that expert witnesses can be called upon who will select the most accurate and impartial view of the child’s best interest. In short, the knowledge provided by the expert witness should serve the functions of verification, confirmation, conversion, and education in order to increase maximal judicial validity of evidence presented in court.

Responsibilities Of The Lawyer In Using Expert Witnesses

In legal proceedings dealing with victimization, the court may require concrete and comprehensive information from experts in order to establish the evidence of responsibility, causality, liability, and damages. Therefore, the lawyer involved will need to have accurate knowledge of the (1) perpetrator (e.g., intention), (2) victim (e.g. impact), (3) victimization processes (e.g., form of maltreatment), and (4) social and legal dispositions (e.g., removal of the victimized child from the abusive environment).

Resolution for these issues relies heavily on subjective explanations and interpretations of circumstantial evidence and facts. Because of the subjective nature in explanations or inferences, the experts used by the legal profession will thus generate possibly controversial and incompatible opinions about various objective phenomena of child abuse and neglect. Therefore, in dealing with the diverse theoretical backgrounds of the experts, lawyers need to have a clear understanding of evaluation criteria for assessment of expert testimony. That is, each expert should and can be characterized in terms of his/her theorization of child abuse and neglect. Since clinical and psychological testimonies are frequently based on some theories that may have no empirically verified foundations, lawyers handling of child abuse and neglect cases, with or without the assistance of other professions, should always evaluate the admissibility of expert testimony in reference to multidisciplinary theories and knowledge. Therefore, the judicial validity of future expert testimony will rely heavily on the competency and willingness of lawyers in testing its admissibility in the areas of necessity, reliability, validity, understandability, and importance.

Above all, it relies on the ability of lawyers to identify different origins of various theoretical foundations used and to differentiate their feasibilities for application to the legal issues involved.

Child Support

In regard to the state maintaining a primary interest in the dependency component of the parent-child relationship, the cases and legislation are very clear. The economics of the tie are for state determination. Husband and wife cannot negotiate child custody and support free from judicial scrutiny and approval. The state retains an interest in these arrangements and the right to assess and alter any settlement the spouses may reach upon divorce even to modify existing arrangements in the best interests of the child.

Economic or dependency issues concerning the ongoing needs of children that are addressed in the divorce context can be compared with the nonmarital situation. Historically, marriage defined the status of children in relation to their parents and the claims they could make upon or through them. The presence or absence of marriage determined which children were labeled “legitimate” or “illegitimate” and, thus, either granted or denied benefits accrued by their parents under state insurance and compensation schemes.

The U.S. Supreme Court has reduced the significance of marriage in regard to the parent-child connection. It did so first in regard to mothers when, in Levy v. Louisiana, it held that denying damages to “illegitimate” children as a result of the wrongful death of their mother is a violation of the equal protection clause of the Fourteenth Amendment. But fathers’ connection to children has also evolved so as to not require its mediation through the institution of marriage. Unmarried fathers now have rights and responsibilities for their children that were not part of the common law scheme of things. Nonmarital children are entitled to benefits historically reserved for their marital counterparts, such as parental support, workers compensation benefits, and the right to recovery in the event of a parent’s wrongful death. Such improvements recognize the reality of dependency is more important than the status of the parents’ relationship.

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from Michael Anderson https://www.ascentlawfirm.com/divorce-lawyer-draper-utah/

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Divorce Lawyer Draper Utah

Speak to an experienced Draper Utah divorce lawyer if you need sound legal advice on divorce. We can help you with temporary orders, child support, child custody, alimony, property division, mediation, negotiations, real estate, and much much more. Divorce law has come a long way since the time the first settlors setup their colonies in the United States.

On May 3, 1930, a large advertisement for Robert Z. Leonard’s film The Divorcee asked the readers of the Washington Post, “Has Love a Chance in Today’s Hot Pursuit of Pleasure?” Loosely based on Ursula Parrott’s 1929 novel Ex-Wife, the film starred Norma Shearer, who won an Oscar for her portrayal of the title character. From the opening scene in which Jerry, played by Shearer, boldly insists that she and Ted (Chester Morris) get married and “make a go of it” as equals, the filmmakers signaled that Shearer’s character was a quintessential “new woman,” committed to a form of female equality and independence defined by male standards. Jerry’s determination on this point is so strong, in fact, that upon discovering Ted’s affair with another woman three years into their marriage, she promptly retaliates by having an extramarital sexual encounter of her own. Ted, after learning of her infidelity, demands a divorce. Jerry plainly has overestimated the extent of her equality—a sentiment echoed in the advertisement when it teased: “Her sin was no greater than his—but she was a woman!”

Once again single, Jerry vows to enjoy her freedom and to keep her bed open to all men except for her ex-husband. She quickly, however, becomes dissatisfied and physically drained by her new life of sexual adventure. Escape presents itself in the form of a married friend named Paul (Conrad Nagel), who proposes to divorce his wife Dorothy (Judith Wood) so that he and Jerry can begin a new life together. Indeed, Dorothy is Jerry’s counterpoint throughout the film. Whereas Jerry is beautiful, Dorothy has been tragically disfigured in a car accident on the night of Jerry and Ted’s engagement. Jerry and Ted married for love, but Paul, who was heavily intoxicated when the accident occurred, married Dorothy only out of guilt. While Jerry accedes to Ted’s insistence of a divorce, Dorothy refuses to concede marital defeat and will not give Paul the divorce he so desperately desires. Comparing herself to Dorothy, Jerry realizes the many ways that she has wronged her own union with Ted. Jerry thus arrives, as one reviewer explained, at “the realization that her own marriage has been a failure because she has not had the same determination [as Dorothy] to see it through.” She resolves to find Ted, and the two have an emotional reunion in which they promise to make their new marriage a success.

By the conclusion of The Divorcée, Jerry—and by extension, the audience—have learned several lessons. First, Jerry’s desire for marital equality is foolish and unrealistic. The film does not criticize a sex-based double standard; rather, its message is that in trying to emulate men, women can lose sight of what is truly important: love and marriage. The pitiful Dorothy is the true female center of the film—she is not beautiful, but she appreciates the value of being married and is willing to fight for Paul. Moreover, the film says, sexual freedom does not ensure happiness, especially for women. Prior to their mutual transgressions, Jerry and Ted plainly enjoy a fulfilling sexual relationship. Jerry’s life as a wanton divorcée, however, is unsatisfying, and only a chance encounter with Paul prevents her from becoming a hardened seductress. Finally, while divorce is sometimes a necessity, it is also frequently the result of easily avoided misunderstandings. Only in reunification—a theme that understandably became a popular Hollywood ending—can Jerry and Ted rediscover their former happiness and lead constructive lives.

The Divorcée quickly became one of the “stand-out hits of the early summer season” of 1930, and popular demand extended its run throughout the nation. The media’s descriptions of the film—press coverage alternately described it as “a chapter out of modern life,” “a Metro-Goldwyn-Mayer production dealing with a great social problem,” and “the most sophisticated treatment of the question of divorce”—highlighted its varied appeal to audiences. By 1930 divorce had indeed become a reality of everyday American life. At the same time, however, many Americans were deeply anxious about what the escalating divorce rate meant for the family, women, and the very future of the nation. Such fears were fanned by an emergent group of experts who spent the first several decades of the twentieth century identifying a “crisis” in American marriage. These self-appointed experts, some from within the academy and some with little or no formal training in sociology or related fields, came from different parts of the political and ideological spectrum. They agreed, however, that marriage (particularly for the white middle class) was in a period of crucial transition and that married couples could not handle this transition effectively on their own. The general belief that marriage was in trouble was hardly new. Social critics and clergyman, in fact, had been decrying a “marriage problem” for most of the nation’s history. But these early critics had focused their efforts on convincing the American public of the indissolubility of the marital union and, if this former effort failed, of the need for uniform divorce laws in order to prevent most divorces. By the 1920s, however, this debate had grown increasingly stale and the arguments ineffective. The ostracism that had once accompanied the decision to divorce had subsided, and the voices of experts began to supplement, and in many cases replace, those of religious authorities in the national conversation about marriage in the United States.

As the nineteenth-century understanding of marriage as a duty faded, experts worked to convince Americans to take an active interest in the health of their marriages. They focused much of their attention on women, the traditional guardians of the home and the individuals deemed primarily responsible for the continuing changes in family life. Experts believed that if marriage was going to be a “companionate” venture—a relationship based on love and satisfying sexual relations—divorce was an important safety valve for husbands and wives who were trapped in loveless unions. They hoped, however, that by studying marriage in an objective manner, they could develop strategies that would slow the rising divorce rate and, more important, improve the general quality of American marriages. To this end, experts launched research studies intended to quantify marital success and taught marriage courses at universities. Some even began to experiment with a European technique known as “marriage counseling,” anticipating that they could prevent both ill-advised unions and unnecessary marital breakups. These efforts, in turn, laid the groundwork for a new understanding of what it meant to be married in the United States.

The nineteenth-century idealization of married, romantic love was a key ideological origin of this transition. Stereotypes of Victorian prudery aside, many American men and women—especially those from more privileged economic backgrounds—clearly expected to have intimate, loving relationships with their chosen mates. During courtship, they exchanged impassioned letters and expressed hopes that their fervent feelings would not subside after marriage. Once married, they expected to place their obligations to one another and to their growing families above those to their extended families and their civic responsibilities. Nineteenth-century Americans, therefore, gradually began to view marriage as a central life experience from which they could derive happiness and forge satisfying personal bonds. This ideal, of course, was often difficult to achieve. The Victorian belief in the innate differences between men and women, in particular, impeded the full realization of marital intimacy and romance. Many husbands and wives, in turn, struggled to share common experiences and interests with their spouses.

Nineteenth-century marriage advisers (primarily ministers and physicians) nevertheless regarded this new emphasis on love with a sense of trepidation. One root of their concern was the fact that many nineteenth-century Americans believed love to be an uncontrollable emotion. While they considered it to be a prerequisite for marriage, they did not necessarily believe that all love was eternal. If marital love was lost, no prescribed action could recapture the feeling. Critics, therefore, tried to inject a more practical view of marriage into discussions of the institution. They argued that love was a choice and that young married couples could take concrete steps to ensure that their unions remained happy. In print, advisers reminded their readers that if these efforts failed, their marriage vows remained binding. It was desirable, in other words, to be content—rather than miserable— while fulfilling ones’ duties. When nineteenth-century marriage advisers pointedly rejected the possibility of divorce, however, they betrayed a fear that not all Americans understood the sanctity of their marriage vows. This concern was not necessarily misplaced. Divorce, in a very limited form, had been available in the United States as early as the colonial era and spread in the years following the American Revolution. No sooner, it seemed, did Americans create a rationale for dissolving the bonds of empire than they set about creating rules for dissolving the bonds of matrimony. While the two acts—dissolution of empire and dissolution of marriage— existed on vastly different scales, the language used by the patriots and lawmakers to justify both was strikingly similar. Furthermore, the legitimization of divorce beyond the very strict rules of English common law helped the American legal system to sever its dependence on the English model. The theoretical legitimization of divorce as a means of ending a “tyrannical” (or sexually promiscuous) union, in other words, was ingrained in a distinctly American legal system from its onset.

The mere legality of divorce, however, did not ensure that divorce was widely available or publicly condoned after the nation’s founding. Until well into the twentieth century, couples could not divorce legally by mutual consent. While divorce laws varied widely from state to state, “fault” divorce always required that one spouse prove that the other was guilty of adultery, desertion, or some other serious failing. Until the mid-nineteenth century, an aggrieved spouse in many states had to petition his or her state legislature in the hopes of obtaining a divorce decree. Only as the number of petitions proliferated did legislators begin to move divorce cases into the courts.

The nation’s slowly rising divorce rate went largely unnoticed until the 1850s, when it became a rallying point for social critics who saw the rate as irrefutable evidence of a creeping moral decay in American life. In the 1870s and 1880s, many state legislatures made their divorce laws more stringent in (unsuccessful) attempts to decrease the number of couples eligible for divorce. Their efforts became even more urgent once a Department of Labor study in the late 1880s confirmed that the United States led the world in divorce. Interestingly, the conservative opposition to divorce rarely called for its prohibition. The potential for chaos if couples resorted to extralegal means to end their marital unions, paired with the laws’ origins in the Revolution, ensured that calls for an outright ban were muted. Plus, conservatives did not have a ready alternative to divorce for unions in which spouses flouted moral convention by committing adultery or violently assaulting their partners. The common trope of the victimized wife seeking a divorce as a last resort was too powerful an image for divorce conservatives to assail. Instead, they fought unsuccessfully for the passage of a federal divorce law that would supersede the lax laws of so-called divorce havens such as Indiana, South Dakota, and, later, Nevada.

Some men and women in the nineteenth century did support relaxed divorce laws, but their views could hardly be classified as prodivorce. Several women’s rights advocates, notably Elizabeth Cady Stanton, were in favor of divorce because it gave women a modicum of control in the face of an otherwise patriarchal institution. This stance proved divisive, however, as many other activists believed that divorce hurt women by leaving them without financial support. Other divorce supporters asserted that the availability of divorce allowed for better marriages. They pleaded in its favor, therefore, not because the availability of divorce subverted existing marriage norms, but rather because its accessibility augmented the value of marriage to American society. Their primary argument was that since the marital union was perfectible, any unions that failed to reach this high standard should be dissolved, leaving the divorced couple to pursue perfection with better-suited mates. This camp held that, at the present time, divorce was necessary but envisioned a future in which it could be eradicated. The exact details of this plan were vague, although they generally involved making it more difficult to get married. One commentator, for instance, felt that “the greatest social evil in our country is the marrying habit.”

What was truly problematic about the “marrying habit” in the minds of many Americans was not only its relationship to the rising incidence of divorce but also the perception that the wrong types of people were getting married and having children. Specifically, a significant number of the nation’s most educated women were remaining single because (among other reasons) they did not want to give up their careers—as would be expected of them—after marriage. The fight for women’s rights, as well, threatened to separate women from their traditional duties as wives and mothers. Furthermore, the birth rate among native-born, white citizens had been in a steady decline since the early nineteenth century, whereas the immigrant birth rate (considered far less desirable at the time) was quite high. President Theodore Roosevelt undoubtedly did not assuage such concerns when he popularized the idea that given present trends, native-born, white U.S. citizens were in danger of committing “race suicide.” Such rhetoric, when paired with anxieties about the divorce rate, contributed to a full-fledged sense of crisis in regard to the state of family life in the United States. Ironically, only a small percentage of Americans were getting divorced in the late nineteenth and early twentieth centuries. According to some historians there were fewer than two divorces for every thousand marriages in 1870. Certainly, many other couples created their own extralegal marital “exits,” prompted either by relationship woes or other necessity. The evidence nevertheless suggests that most Americans’ motivations for divorcing were hardly frivolous. Court records, for example, indicate that husbands and wives only sought to end their unions in extreme circumstances, such as when an offending spouse had long since disappeared, failed to provide basic necessities, or had committed adultery.

While many divorcing men and women also knew what the courts needed to hear in order to decide in their favor and may well have tailored their cases to fit such expectations, the low divorce rate nevertheless points to the serious personal and social consequences that accompanied the decision to divorce in Victorian America. At the time, after all, “evil” was the word most frequently paired with “divorce” in the popular press and in religious and legal circles. Most popular fiction, in turn, portrayed divorce as shameful and emphasized its harmful effects on individuals and society at large. The deleterious consequences of divorce were particularly evident for women. For wives without independent financial means, the infrequency of alimony allocations meant that divorce could lead to reduced circumstances or even destitution. Plus, divorce clearly represented a grave failure for any woman who embraced a Victorian identity as the moral guardian of the home, especially if her husband had succumbed to temptation and committed adultery. Many Americans believed divorced men and women to be morally suspect, and the divorced faced an uncertain social future based on their decision to end a marriage, no matter what had motivated them to do so.

The contemporary meaning of marriage is no easier to pin down and ascertain if we look at it from a societal, rather than an individual or legal, perspective. It is true that there are more public justifications for marriage from society, but marriage also has multiple potential meanings to the society that constructs and contains it. In fact, the express, explicit reasons for marriage from society’s perspective have not changed all that much over time. Some are mundane, such as the need for a certain formal record keeping and for the assignment of responsibilities and rights among persons (e.g., to facilitate property transfers at death or identify persons responsible for payment of household debts).

There are some benefits for society expressed through its interest in marriage in regard to public health. The application for a marriage license can also be the occasion for mandatory health screening or counseling on genetics. It can be used for social engineering purposes, such as to supply information on the importance of marriage or to educate couples about the purported negative impact on their children, should they have any, from any future decision to separate and divorce.

The American marital entity has an interesting lineage as a legal category. It is directly tied to one religious set of concepts and beliefs. Looking back into its legal history, we see that marriage was not created de novo as an American institution. As a legal relationship, its content and terms were drawn from British institutions that had evolved rules exemplifying rigid relationships.

In England there was a direct historic connection between the state religion and the legal treatment of intimate relationships. Marriage was a sacrament administered by the church and subject to its rules. Under the common-law system in effect in England until fairly recently (as legal institutions go), issues concerning the creation and dissolution of marriage and other aspects of family formation were left to the ecclesiastical courts. It was not until the passage of the Matrimonial Causes Act of 1857 that jurisdiction over marriage and divorce was transferred to civil courts. Consistent with the precepts of their religious approach, these courts viewed marriage as a lifelong commitment. An annulment or, failing that, desertion, was virtually the only route out of an unhappy union. The Church of England’s ecclesiastical courts could grant a divorce “from bed and board,” which allowed couples to live apart but not remarry. Divorce was theoretically available, but only through a special act of Parliament, and between 1800 and 1836, an average of three such bills of divorce were granted each year. Generally, access to divorce was limited until the late twentieth century. This view of the presumed permanence of marriage was also evident in colonial America, where divorce could be granted by a secular judiciary, but this rarely happened. In fact, prior to the mid-twentieth century in the United States, judicial divorce although increasingly more common over time than in the colonial period, was available only for “cause.” “Cause” could include adultery (in New York this was the only cause that justified divorce in 1787), as well as “impotence, adultery, intolerable severity, three years’ willful desertion, and long absence with presumption of death” (Vermont in 1798) and “gross misbehavior and wickedness in either of the parties, repugnant to and in violation of the marriage covenant”. Today in Utah you can seek a divorce on various grounds including adultery, impotence and desertion. Speak to an experienced Draper Utah divorce lawyer to know the various under which you can seek a divorce from your spouse.

An “innocent” spouse could ask the state to sever the marital tie when she or he was successful in demonstrating the “fault” of her or his mate. Fault grounds indicated there had been some egregious offense to the very marital union. States such as New York at that time permitted divorce only for very serious offenses that were considered to undermine the nature of the marital connection, such as adultery. Other states considered the amorphous category of “cruelty” to be a sufficient basis for dissolution. Colonial divorce laws varied considerably by region, with the northeastern states tending to be slightly more liberal than their southern neighbors. In the United States there was no established state religion, but the relationship between religious perceptions and beliefs about marriage and the construction of state principles regarding that connection were still evident, if attenuated. The individual states incorporated common-law concepts and definitions from the religiously shaped English rules into their laws governing family. American judges tracked the religious rhetoric of their English counterparts when considering issues involving the family. Divine laws governed family relationships, setting out the natural order for the individuals who entered them. The content of the marital relationship was also divinely structured. In what has become one of the most famous concurrences in the American legal tradition, in the 1873 Supreme Court case of Bradwell v. Illinois, Justice Bradley made what is still considered the classic statement regarding the common-law perception of the divinely determined distinct roles of husbands and wives. The organization of the traditional family in the British and American legal tradition was also patriarchal, with the husband—“head” of the family—owed obedience and domestic and sexual services from his wife. In return, he was obligated to support her and their children. The husband’s role conferred rights as well as responsibilities, including the right to punish family members. Because he bore responsibility for their actions, a husband had the right to reasonably chastise both wife and children. His support obligations also gave him a corresponding right to the earnings of his wife and children, and to control over their property.

Further, the view of marriage expressed by Justice Bradley and the divinely ordained respective positions of the spouses also limited the expectations and opportunities for married women in the larger society. The marital family’s hierarchically organized and well-defined gender roles placed the spouses in different spheres. Women, excluded from many of the public aspects of life, were perceived as appropriately dependent. As the Bradley concurrence in Bradwell expressed, their true calling was considered to be the home and family.

This ordering of domestic life was intuitive—a response to the natural dependency of women. Common law imposed disabilities on women that supported this ordering of the world. Married women were not able to own property or make contracts. In some instances they could not even be held responsible for their own torts or crimes. Their husbands, perceived as controlling them absolutely, were charged instead.

The common law expressed a structure in which the distinct specializations of the spouses complemented each other: the wage earner and the housewife; the protector and the protected; the independent and the dependent. Each spouse needed his or her complement in order to attain and maintain a whole, complete family entity, one that provided for all its members’ needs. This specialization, bringing together the head and the heart of the family in the form of husband and wife, allowed the marital family to function in a self-sufficient manner, providing both economic and domestic resources to the unit.

This unequal, if complementary, positioning of men and women within the common-law family became problematic for women when divorce became more prevalent under no-fault statutes. These statutes changed a fundamental aspect of marriage. Marriage in its common-law manifestation was considered a lifelong commitment, but no-fault divorces ushered in a revolution in our way of thinking about the permanence of the relationship of marriage. No-fault meant much easier access to divorce. In many states divorce became available on unilateral demand of one spouse even over the objection of the other that the relationship could be salvaged. Men who wanted to be free of their “faultless” wives (as determined under the previous fault divorce statutes) no longer had to bargain with those wives and buy their complicity in the divorce process through concession of property or other economic incentives.

Initiated by both wives and husbands, no-fault opened the divorce floodgate and exposed the economic vulnerability of the common-law assignment of ownership of all wages and property to the wage earner. Wives were not considered entitled to a share of property accumulated during the marriage, since they did not earn the money to buy it and typically title was in the husband’s name. As a result, women found themselves and their children destitute at divorce.

The discouragement of married women from participation in the workplace and investment in a career also had more general negative economic implications. After a divorce, women found that they had to work in the marketplace as well as in the home, yet the old vision of marriage had discouraged them from honing the skills they needed to do so. All this has changed, of course. The no-fault revolution coincided with another revolution in the way we understand the world—the gender equality movement, which ushered in massive changes in all phases of life, including marriage.

No Fault Divorce In Draper Utah

The move to no-fault divorce might have altered our view of marriage, but the gender equality revolution altered the way women perceive their societal, nonfamilial roles. It seems hard to believe that it was less than a century ago that women won important political and civil rights, such as the vote, which was achieved in 1920 with the passage of the Nineteenth Amendment. Even after women achieved the right to vote, they were still excluded from service on juries. Although the first women were summoned to jury service in 1870, as a rule, women were systematically denied or exempted from jury service for the next century, usually for reasons that were considered “benign” and “practical”. It was not until 1994, in J.E.B. v. T.B., that the Supreme Court declared that peremptory challenges based on sex violate the equal protection clause of the Fourteenth Amendment. Until recently, the common-law rule was that a woman’s domicile (essentially her legal place of residence) was always the same as her husband’s. This caused difficulty for many married women, as a person’s domicile is used in determining numerous legal entitlements, categories, and qualifications. Because a woman’s legal identity had traditionally been merged with that of her husband, her domicile was assigned based on her husband’s place of residence, and a woman had no control over this determination. As divorce laws changed and women’s destinies were less tied to the institution of marriage, the inappropriateness of this situation became more obvious. The common-law rule began to change in the 1970s, and the American Law Institute finally ratified this change in 1988.

Prenuptial Agreements

Prenuptial agreements have come to enjoy a presumption of validity, as long as they were made voluntarily and with full disclosure of financial information. Some courts still maintain the additional requirement that an agreement be substantively “fair” to both parties. Even while they do so, recognition is typically given to the changes in gender expectations. If you are planning a divorce and have a prenuptial agreement in place, consult with an experienced Draper Utah divorce law. The lawyer will review your prenuptial agreement and advise you on whether the agreement will be held valid by the court.

Child Custody And Child Support

The past few decades have witnessed a dramatic increase in the divorce rate in the United States and elsewhere, a phenomenon that reflects and influences changing social attitudes toward marriage and the family. When offspring are involved, the divorce process becomes further complicated by considerations over custody and visitation rights. And when the parents themselves cannot resolve these issues, the courts are faced with the difficult task of making a custody decision.

First, despite important differences in the amount of time they spend with their infants and young children, both fathers and mothers are significant figures in the infant’s world from a very early age. By the end of the first year, infants recognize both parents and prefer them to unfamiliar adults. By this time and increasingly during the second year, infants respond differently to each parent, reflecting the development of a rudimentary appreciation of each parent’s unique role in their world. The research indicates that there are more similarities than differences in infant responsiveness to fathers and mothers: They protest separation from either parent, delight in being reunited with them, and play comfortably in the presence of either father or mother. By all accounts, it is apparent that infants develop emotionally salient attachment relationships with each parent by the end of the first year. In short, both mother and father are “psychological parents” to their young infants, even when the father does not assume major caregiving responsibilities. There is every reason to assume that the psychological salience of each parent persists as the child grows older.

Second, even though both parents are important figures in the infant’s world, mothers and fathers differ significantly in their caretaking roles and responsibilities in most homes. Mothers typically assume basic caretaking tasks such as feeding, cleaning, dressing, soothing of distress, and preventative protection from harm. When they play with their babies, they use low-key verbally-oriented and toy-mediated games. In contrast, fathers are typically much less involved in routine caretaking tasks. Rather, they spend a greater proportion of their time engaged in play–specifically, a vigorous rough-and-tumble, physically stimulating kind of play.

The adjudication of child custody disputes raises important and interesting questions, among them the role of fathers as caregivers. For many years, courts have assumed a preference for the mother, contending that a mother’s nurturance and love constitute irreplaceable components of early socio-personality development, particularly during the “tender years.” More recently, however, judges have been using a more egalitarian “best interests of the child” guideline, in which mother and father can compete on a more equal footing for the custody of offspring. Yet this new guideline is a mixed blessing. Although it opens the door to fathers, its conceptual ambiguity permits a wider latitude of subjective judgment on the part of judges, which often results in an implicit maternal preference. The question of what are the child’s “best interests,” and how these may be served by a custody decision, is crucial if this decision-rule is to play a useful role in the custody adjudication process.

In hearing a custody dispute, a judge is faced with an unusual and difficult decision. Most legal disputes focus on the documentation of facts relevant to a case; child custody decisions entail more subjective judgments of parental caregiving competence. Furthermore, custody disputes cannot be resolved on the basis of judicial precedent. Rather, they must be addressed on a case-by-case basis, taking into consideration the unique history and circumstances of the family in question. The judge’s decision-making is further complicated by the predictive nature of the custody award. That is, he or she must consider the long-term ramifications of the decision, including the future economic and living conditions of each parent, the developmental needs of the child, and the potential availability of extrafamilial support systems. Finally, custody decisions rely heavily upon a judge’s discretionary powers in applying legislative guidelines to the particular family in question.

To be sure, most parents who divorce can agree on custody of the children without seeking judicial help. Despite the dramatic increase in the rate of divorce over the past two decades and the broadening of legislative guidelines to put parents on a more equal footing in seeking custody, fewer than 15% of the couples who divorce will proceed with a fully contested custody battle. And, of course, the overwhelming majority of custody awards are to the mother: Fewer than 10% of divorce decrees award children to the father. In many cases, fathers who receive custody do so with the consent of the noncustodial mother.

But although the proportion of disputed custody cases seems to be stable, the absolute number of disputes is increasing sharply due to the rising divorce rate. Coupled with the gradual changes in parental roles evoked, in part, by the increasing number of working mothers, it is reasonable to expect that the number of divorce petitions in which both parents want custody will continue to increase in the years to come. Therefore, it is important to clarify the guidelines by which judges resolve these disputes. The legislative guideline that currently prevails in most states–that is, awarding custody according to the “best interests of the child”–is historically the least explicit. Interestingly, English legal tradition long asserted a paternal preference, reflecting a time in which offspring were regarded as heirs to privilege and wealth and as parental property. Thus the father was viewed as the primary guardian of his legitimate children and, in the event of a dissolution of the marital bond, he assumed exclusive custodial rights. With the changes in social structure wrought by the Industrial Revolution and changes in social philosophy provoked by writers like Locke and Rousseau, this common law assumption gradually broke down. Instead, by the 19th century, both English and American law put the wife on an equal footing with her husband: Both were to receive equal consideration in a custody decision. In practice, however, this usually resulted in an implicit maternal preference, because custody decisions were based on evaluations of parental fitness and wives, as the customary initiators of divorce action, were in a better position to argue against their husbands. Concurrently, an explicit maternal preference when the children were in their “tender years” (generally speaking, under the age of seven) helped to consolidate this implicit bias for the mother in the courts. In short, changing judicial guidelines were reflecting changing social values. Childhood was increasingly viewed as a period of nurturance and education, and mothers typically assumed a major role for both. Early in the 20th century the maternal presumption became consolidated in judicial decision-making, sometimes by explicit statute but more often in the form of case law.

Jurists assumed that, except in instances when the mother was clearly unfit, it was consistently best for the child to benefit from the love and nurturance provided by the mother. They were supported in this assumption by contemporary psychoanalytic theory, which stressed the unique role of a mother’s love to early psychological development.

More recently, however, the maternal presumption has been increasingly questioned in favor of a more egalitarian guideline. Much of the impetus for this reconsideration has come from social critics who regard the maternal preference as inherently sexist and a perpetuation of traditional gender roles. The dramatic rise in the number of working mothers in recent years and the concurrent increase in demand for infant and preschool childcare services are particularly salient manifestations of the changing American family. Thus the traditional family system in which mother is a fulltime caregiver is no longer the norm, and this has undermined the rationale for an explicit preference for mother in custody disputes. In addition, of course, there are a number of instances in which an explicit maternal presumption is clearly inappropriate, such as when the father or another person has assumed sole caregiving responsibilities, or when the mother is abusive or neglectful. Finally, many critics contend that the maternal presumption focused attention on judicial evaluations of parental fitness rather than on child-centered concerns. Thus the purpose of the best interests guideline is to encourage an appraisal of the custody dispute in light of the contributions (actual and potential) of each parent to the child’s present and future needs.

Problems with the Best Interests Of The Child Guideline

This legislative intent may be significantly undermined, however, by the ambiguity concerning how the child’s “best interests” are to be determined. Judges are provided few explicit decision-rules to determine what a child’s best interests are, much less rules that take into account a child’s changing developmental needs. Even when statutes provide broad guidelines defining the child’s best interests, these guidelines are seldom very explicit and judges are offered no guidance concerning which of these interests are most important in determining custody. This leaves judges broad discretion in defining these interests, with the result that custody awards can be determined on the basis of highly subjective criteria that may vary widely on a case-by-case basis. Alternatively, many judges simply adhere to a maternal presumption despite the changed mandate. In short, one of the greatest problems with the best interests guideline is the current lack of certainty concerning how this expression should be interpreted. A fundamental question, for example, concerns which of the child’s many “interests” should predominate in a judge’s deliberations over a custody award. Fundamentally, of course, children require the basic necessities that promote physical well being: adequate nourishment, a warm, safe home environment, sufficient health care, clothing, and an interpersonal environment that is not overtly abusive or oppressive. Beyond these basic necessities, however, there is considerable controversy concerning which of the child’s other needs merit primary consideration. Is it important that the child be with the parent who has provided the most care in the past (i.e., ensure continuity of care)? What of the child’s future educational or religious training? Should jurists be concerned with the child’s “character development”? Is continuity in living circumstances important? Should the child be with the same-sex parent? To put it simply, should the child’s best interests be strictly construed to mean only the basic requirements of adequate caregiving, or should the courts be more interested in the child’s optimal development?

There is no easy answer to this question, and opinions vary widely. Some legal scholars advocate a more limited interpretation of the child’s interests in order to curtail the court’s discretionary powers in deciding child placement cases (e.g., custody, foster care, etc.). On the other hand, some experts argue that “psychological parenting” should be the primary consideration in determining child placement; that is, to whom has the child developed a lasting emotional bond? There is, in short, no clear consensus concerning what constitute the child’s primary interests in determining a custody award.

Assuming that the best interests guideline is meant to include factors other than physical well being alone, a second question concerns the limits of this construction. That is, how do we evaluate the parental caregiving practices that promote the child’s best interests? Is one parent’s warm but permissive approach preferable to another’s less affectionate limit-setting? Should judges prefer a custody arrangement that is likely to foster a strong traditional gender identity in the child? These and a range of similar questions surround most custody decisions and concern the implicit goals and values that underly a court’s preference for one parent over the other.

It is doubtful that there is much broad consensus within most Western societies concerning these child-rearing goals and practices. As with differences in lifestyle, parents vary greatly concerning the traits and characteristics they seek to develop in their children, and they employ a range of practices for achieving these goals. This diversity contributes to the heterogeneity of a society, in fact, and courts have traditionally hesitated to infringe upon parental freedom to raise their children as they prefer. Indeed, apart from those instances in which state intervention is mandated by manifest child abuse or neglect, greater concern has been voiced over the state’s overregulation of parental decision-making in areas such as education, religious training, and medical care. In short, society encourages a great deal of freedom and diversity in child-rearing goals and practices and, by and large, the courts have insured this freedom. In the adjudication of child custody disputes, however, judges frequently rely on subjective judgments of a parent’s caretaking style that are often based on personal values and beliefs. Sometimes these judgments concern the “moral climate” of the home. In some cases, a judgment is based on a parent’s occupational commitments, political affiliations, expectation of remarriage, or economic circumstances rather than his or her relationship with the child. In short, these judgments of caretaking often involve intuitive, usually unarticulated value judgments that are relative to the values and beliefs of the judge determining a custody settlement. These values are likely to reflect sociocultural and social class biases as well as religious beliefs and moral attitudes. Importantly, they usually entail judgments of parental fitness, with secondary regard for their actual or potential effects upon the child. Thus a second difficulty with the best interests guideline concerns judging the parental practices that contribute to a child’s best interests. In the absence of a prevailing social consensus, judges tend to use their own intuitive value judgments that may or may not reflect child-centered concerns.

It is important to note, however, that intuitive judgments of parental practices are not limited to jurists. Indeed, “expert testimony” from various sources, including psychiatric witnesses and social workers, has been criticized as being largely subjective and value based, and thus unreliable. In other words, any subjective assessment of a family is likely to result in speculative and unreliable judgments. Furthermore, this unreliability is especially likely when the family is under stress (as in a custody battle), when normal patterns of interaction are affected by emotional turmoil. Thus it is doubtful whether assessments of family interaction at the time of a custody dispute–by a judge or an “expert witness”–yield meaningful information about parent-child relationships. A third ambiguity in the best interests guideline concerns the time frame within which a child’s interests are appraised. Divorce presents parents and children with immediate and difficult adjustments. Should judges seek a custody arrangement that helps the child to negotiate these short-term transitions? Or should longer-term concerns take precedence if they conflict with more immediate needs? These, too, are questions of judgment about which legislative guidelines or judicial precedent offer little guidance.

Taken together, the major difficulty with the best interests guideline is the broad interpretational latitude permitted judges in deciding custody disputes. Disagreement exists concerning which of the child’s many interests should be included in a judge’s deliberations, how these interests are translated into judgments of parental child-rearing practices (and how these practices should be assessed), and whether short-term or long-term concerns should take precedence. These conceptual ambiguities thus delegate a good deal of discretionary power to judges, with the result that custody decisions may be based on implicit value judgments that are relative and thus inappropriate to legal decision-making. Of course, these interpretational problems are most acute when the child’s best interests are broadly construed, but to some extent they are inherent within any such inclusive formulation.

In view of this, some legal scholars have called the process of child custody adjudication “indeterminate”–that is, there are often no reliable, objective and legally satisfying ways of awarding custody to a parent according to the child’s best interests. Whereas some custody cases are always relatively easy to resolve (such as when one parent is abusive, or has abandoned the family, and the other parent has not), for the majority of cases there exist no generally accepted, easily applied decision-rules by which the child’s best interests may be determined fairly and objectively. The same case presented to two judges may be decided in very different ways. The indeterminacy of child custody adjudication also has important implications outside the courtroom. Legal guidelines usually serve as negotiating parameters by which the parties to a dispute can assess their relative chances of success in adjudication and modify their demands and expectations accordingly. Under the best interests rule, fathers and mothers are provided little information of this kind. Thus articulate and consistent custody guidelines are necessary both for the adjudication process and for the interpersonal bargaining that precedes it. What is the solution to judicial indeterminacy in custody cases? Some have suggested a return to more specific, all-encompassing legislative decision-rules (e.g., custody awarded to the mother if the child is age 5 or younger; custody awarded to the same-sex parent with older children). This would limit judicial discretion, but a proportion of disputes would certainly be resolved unfairly. Another proposal is for a greater emphasis on predivorce mediation to encourage parents to seek their own solution to the custody dispute short of a court battle. A third–and more radical–alternative is to decide custody disputes by some random process: in essence, a judicial coin-flip.

Such an approach would acknowledge the inherent inability of the court to make an objective, reliable custody award, and would prevent the noncustodial parent from feeling that he or she was judged to be a less adequate parent than the spouse with custody.

Short of these alternatives, it is clear that judicial decision-making in custody disputes entails highly idiosyncratic considerations that must be addressed on a case-by-case basis. The history of the family in question, the wishes of the child, the nature of the temporary custody arrangements, the quality and quantity of predivorce parental caregiving involvement, and prospective living conditions for the child with either parent are all considerations (to name a few) that should figure prominently in a custody award and that are likely to vary from one family to another. The important question, however, is whether there exists a valid overall framework within which these factors can be considered and by which further information may be requested and evaluated. In other words, judges and lawyers require some general understanding of the nature of family functioning in intact and divorced homes in order to properly interpret and weigh these considerations relevant to the child’s best interests. Operating within such a framework, jurists may be less likely to base custody decisions upon idiosyncratic and value-laden considerations. It is in providing such an overall knowledge base that psychological research may have a limited but important role in the adjudication of child custody disputes. This is particularly true concerning the role of fathers as caregivers, which is the topic of this review.

One very important factor differentiating mother-child from father-child relationships is the quantity of caretaking. In traditional homes, of course, the mother is usually relegated childcare as well as other domestic chores while fathers spend most of their day away from the home. With the reappraisal of gender roles during the last decade, one might anticipate a softening of these traditional childcare assignments within the home. Several recent studies of time use suggest, however, that fathers are still largely uninvolved in routine caretaking tasks.

Taken together, these differences in the quality and contexts of mother-infant and father-infant interaction reflect a basic difference in each parent’s role vis-à- vis the baby. In most instances, the mother is the infant’s primary caretaker, even when she is employed outside of the home. That is, she more typically provides for the baby’s basic needs–feeding, bathing, diaper-changing, soothing of distress, preventative protection from harm, and similar ministrations–as well as being a salient social partner in low-key play. In contrast, the father’s typical role as a secondary caretaker is less focused around specific caregiving activities and more focused on vigorous, physically stimulating play with the baby. Play is thus a more basic interactive context for infants with their fathers than with their mothers; in addition, different kinds of play activities also distinguish each parent. In short, infants begin to know and develop expectations for each parent in somewhat different social contexts.

Does this division of roles mean that fathers are less competent than mothers in basic caretaking tasks? Evidently not. If you are a father, speak to an experienced Draper Utah divorce lawyer for advice on how you can get custody of your children.

Fathers are competent and responsive caretakers, whether their competence is appraised in terms of the occurrence of certain caretaking behaviors or their responsiveness to infant cues. Similarities in mother-infant and father-infant nurturant and caretaking activities have been noted for parents in other cultures as well. Such findings are ironic in view of the strong tendency of fathers to eschew caretaking roles at home. In other words, fathers can be highly competent caretakers when called upon to do so, even though they seldom assume such responsibilities spontaneously. Instead, they spend a greater proportion of their time engaged in vigorous, physically active play with their infants.

Taken together, the research on mother-infant and father-infant relationships indicates that fathers are preferred as play partners from a relatively early age, and mothers are preferentially sought when infants are fatigued, alarmed, or stressed. As earlier indicated, the paternal preference is unsurprising in view of the contexts in which infants typically encounter their fathers and the kinds of exciting, physically active games fathers play. Infants seem to learn that fathers are fun to play with during the second year. Similarly, infants’ preferences for their mothers under stress are also unsurprising in view of the maternal caretaking role in most families. Mothers typically feed, bathe, clothe and, importantly, comfort their babies when the infants are distressed; infants seem to learn early on that their mothers are a source of soothing. Thus mothers and fathers differ importantly both in their caretaking roles and, it seems, in how they are perceived by the baby from an early age. Mothers as primary caregivers in most families spend a greater amount of time with their infant sons and daughters and assume greater responsibility for routine caretaking tasks, even when they also work outside of the home. Fathers as secondary caregivers spend less time with infants overall but devote a greater proportion of their time to physically vigorous, arousing play. These differences in parental involvement are manifested early in differences in infant responsiveness. Infants prefer their fathers as play partners and respond more positively to them in these situations. Under conditions of stress, however, they turn to mothers, reflecting different expectations for each parent that develop during the first year. In short, infants learn about their mothers and fathers in different contexts, and develop different expectations for them as a result.

Often a child can become a mere cipher in conflicts over custody. Finding the right balance between the claims of two separating partners is not easy. Judges have more commonly been willing to award custody of young children to mothers on the ‘tender-years’ principle: the idea that, because of the strong natural bond between mother and child, if young children cannot be with both parents, they are better off with their mother. So, while the case for women in the custody battle may be strong, it is increasingly recognized that men, too, have grievances to be addressed and that current law can disadvantage them in a number of ways. In the vast majority of cases, custody of children on divorce is awarded to women, and contact orders, largely made to men, are often broken. There are particular cases where court decisions are likely to strike anyone as totally unfair—a non-working wife who ends a marriage because of another liaison may well be awarded children, house, and most of the couple’s financial assets, notwithstanding her responsibility for the collapse of their joint family-building project and her lack of any financial input. She is free to introduce unofficially into the family structure another man to replace the natural father in the lives of her children. With the growth of these disadvantages has come the loss of many of the previous advantages of marriage for a man, as traditionally the best way of securing not only a steady sex life, but also status in the community, and a substantial and satisfactory personal project in which he could reasonably regard himself as a vital element.

Given these tensions, it is not difficult to see why the closing years of the twentieth century should have seen demands for a new approach to child custody based on the principle that, even if divorce can end relationships between adults, it is important to maintain the child–parent relationship. The presumption is that a continuing relationship with both parents will enable both of them to offer physical, emotional, and financial support to their children. The practical goal, then, becomes a matter of seeking to ensure reasonable contact for both parties. But ‘reasonable contact’ is an imprecise concept, varying from contact on alternate weekends to a more extensive and rigid division of time mapped out in terms of days or even hours per year. So joint or shared custody, in the sense of children’s time being relatively equally divided between parents, has become the arrangement of choice for some on the basis that it finally establishes the principle of equality and the equal legal standing of women and men. It may also be promoted from the child’s point of view, as it is, for example, in parts of the USA, where co-parenting may be advocated as a matter of a child’s rights—in this case, a right to live with either parent for some of the time. But the burden such arrangements impose on children should not be underestimated. It is often argued that disruption for children can be justified if it represents an escape from extremely difficult domestic situations. But, in general, the effects of divorce on children are poor and can be measured in terms of low educational achievement, difficult relationships with parents, especially fathers, and other emotional problems.

So all this leaves us with the fundamental question of who should care for the child when a couple splits up. For this we need to understand the judgement King Solomon passed. There is, though, more to the story of Solomon’s judgement than this. Faced with the equal balance of the two rival claims, Solomon intends, or at least pretends to intend, to take a sword and split the child in two. The false claimant is ready to accept this. But the true mother calls for an end to the legal battle and its dire outcome, saying that she is ready for the sake of her child to allow it to go to the other claimant. Solomon gives the child to her for, by her willingness to sacrifice her own interest, she has unintentionally demonstrated the truth of her claim.

In many ways, equal joint custody resembles the solution proposed by King Solomon—the child must live a split life between two homes, with little time or opportunity to create a place for itself in either, and much of its potential time with peers taken up by outings with a displaced parent. In these circumstances, it may be that some parents will express their love for the child by relinquishing maximum rights, asking only reasonable and modest access, in order to give the child a life of its own.

Cases involving extreme violence represent, of course, the outer limits of the way in which custody can serve the needs or preferences of parents and ignore the vulnerability of children. But, even where violence is not a factor, contact and residence rulings can be a way, deliberate or not, for one parent to exercise control over the other, making it impossible for the other parent to gather up the threads and start again, free from harassment and disruption. There are no easy answers to post-separation arrangements looked at from the point of view of the children themselves. It would be better if parents could recognize this and acknowledge that their own decision to split up means that, as far as their children are concerned, their security, home life and frame of reference for living their lives has been unpicked. If it is difficult to secure fairness for both parents, it is even more difficult.

Reconstituted Families

In practice, separations often bring into already complex situations new people, both adults and children, who have their own needs and perspectives. For, while the initial situation may be focused on the problem of how two individuals are to share their children’s lives between them, in practice one or both partners may bring someone else into the picture, posing a challenge of adjustment both for the adults and for their children. As far as the adults are concerned, it may be difficult to accept that their children are living with the person who has replaced them in their partner’s life. It will be difficult if the new mother or father is not caring properly for the children, but in some ways just as difficult if they are doing so successfully. A mother, particularly if she is not responsible for the breach, may find it very hard to accept that the woman who is responsible for it has taken over her role and formed a bond with her children. The same applies to fathers. A man, too, may find it hard to accept the reality of his children living with the man who has taken over his own role.

Custody and access are, of course, intended to protect parents’ relationships with their children and also to secure the best interests of those children. But these are difficult goals to reconcile. Even in the best of cases, children do not like to be asked to choose between their parents. Listening to the child’s voice is a worthwhile step, but no one should be deceived into thinking that that is a universal panacea. Like the apocryphal traveller whose request for advice evokes the response ‘I would not start from here’, in most cases the child does not want the split in the first place. What children most need and most want is what normal family life provides: a chance to build their own lives and relationships with their peers, with their parents in the background for support and comfort, and preferably not as judicially ordered companions for parent and child outings.

What children want, sadly they will not always get, and sometimes society itself will pay the price. But it is worth adults at least being clear about what they are doing and not deluding themselves with anodyne suggestions that their children will be happier, or at least benefit, when their aspirations for simple childhood constants are shattered and exchanged for a new life that includes mobility, fluctuating relationships, new ‘siblings’ to negotiate with, and new parental whims to accommodate. The old mantra ‘I am only staying with you for the sake of the children’ may often have been the simple truth in the past and in many cases could have been the better choice. From the child’s point of view, it may still be so. For, on the whole, children like families—the family is a child-friendly institution and only secondarily there to keep adults happy.

Child Abuse

If your spouse is abusing your child, you should seek custody of your child. Proving child abuse is difficult as the child may be scared to speak out against the abusive parent. You will require the services of an expert witness.

Although no uniform theory is available to provide consistent answers to disputed issues between conflicting parties, there should be a common goal for all professionals acting as expert witnesses. That is, all theories and expert witnesses should work toward the best interest of the child. However, different professionals may disagree as to what is in a child’s best interest. Under this premise, lawyers need to know the fundamental similarities and differences of all theories and models of child abuse and neglect such that expert witnesses can be called upon who will select the most accurate and impartial view of the child’s best interest. In short, the knowledge provided by the expert witness should serve the functions of verification, confirmation, conversion, and education in order to increase maximal judicial validity of evidence presented in court.

Responsibilities Of The Lawyer In Using Expert Witnesses

In legal proceedings dealing with victimization, the court may require concrete and comprehensive information from experts in order to establish the evidence of responsibility, causality, liability, and damages. Therefore, the lawyer involved will need to have accurate knowledge of the (1) perpetrator (e.g., intention), (2) victim (e.g. impact), (3) victimization processes (e.g., form of maltreatment), and (4) social and legal dispositions (e.g., removal of the victimized child from the abusive environment).

Resolution for these issues relies heavily on subjective explanations and interpretations of circumstantial evidence and facts. Because of the subjective nature in explanations or inferences, the experts used by the legal profession will thus generate possibly controversial and incompatible opinions about various objective phenomena of child abuse and neglect. Therefore, in dealing with the diverse theoretical backgrounds of the experts, lawyers need to have a clear understanding of evaluation criteria for assessment of expert testimony. That is, each expert should and can be characterized in terms of his/her theorization of child abuse and neglect. Since clinical and psychological testimonies are frequently based on some theories that may have no empirically verified foundations, lawyers handling of child abuse and neglect cases, with or without the assistance of other professions, should always evaluate the admissibility of expert testimony in reference to multidisciplinary theories and knowledge. Therefore, the judicial validity of future expert testimony will rely heavily on the competency and willingness of lawyers in testing its admissibility in the areas of necessity, reliability, validity, understandability, and importance.

Above all, it relies on the ability of lawyers to identify different origins of various theoretical foundations used and to differentiate their feasibilities for application to the legal issues involved.

Child Support

In regard to the state maintaining a primary interest in the dependency component of the parent-child relationship, the cases and legislation are very clear. The economics of the tie are for state determination. Husband and wife cannot negotiate child custody and support free from judicial scrutiny and approval. The state retains an interest in these arrangements and the right to assess and alter any settlement the spouses may reach upon divorce even to modify existing arrangements in the best interests of the child.

Economic or dependency issues concerning the ongoing needs of children that are addressed in the divorce context can be compared with the nonmarital situation. Historically, marriage defined the status of children in relation to their parents and the claims they could make upon or through them. The presence or absence of marriage determined which children were labeled “legitimate” or “illegitimate” and, thus, either granted or denied benefits accrued by their parents under state insurance and compensation schemes.

The U.S. Supreme Court has reduced the significance of marriage in regard to the parent-child connection. It did so first in regard to mothers when, in Levy v. Louisiana, it held that denying damages to “illegitimate” children as a result of the wrongful death of their mother is a violation of the equal protection clause of the Fourteenth Amendment. But fathers’ connection to children has also evolved so as to not require its mediation through the institution of marriage. Unmarried fathers now have rights and responsibilities for their children that were not part of the common law scheme of things. Nonmarital children are entitled to benefits historically reserved for their marital counterparts, such as parental support, workers compensation benefits, and the right to recovery in the event of a parent’s wrongful death. Such improvements recognize the reality of dependency is more important than the status of the parents’ relationship.

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Divorce Lawyer Draper Utah

Speak to an experienced Draper Utah divorce lawyer if you need sound legal advice on divorce. We can help you with temporary orders, child support, child custody, alimony, property division, mediation, negotiations, real estate, and much much more. Divorce law has come a long way since the time the first settlors setup their colonies in the United States.

On May 3, 1930, a large advertisement for Robert Z. Leonard’s film The Divorcee asked the readers of the Washington Post, “Has Love a Chance in Today’s Hot Pursuit of Pleasure?” Loosely based on Ursula Parrott’s 1929 novel Ex-Wife, the film starred Norma Shearer, who won an Oscar for her portrayal of the title character. From the opening scene in which Jerry, played by Shearer, boldly insists that she and Ted (Chester Morris) get married and “make a go of it” as equals, the filmmakers signaled that Shearer’s character was a quintessential “new woman,” committed to a form of female equality and independence defined by male standards. Jerry’s determination on this point is so strong, in fact, that upon discovering Ted’s affair with another woman three years into their marriage, she promptly retaliates by having an extramarital sexual encounter of her own. Ted, after learning of her infidelity, demands a divorce. Jerry plainly has overestimated the extent of her equality—a sentiment echoed in the advertisement when it teased: “Her sin was no greater than his—but she was a woman!”

Once again single, Jerry vows to enjoy her freedom and to keep her bed open to all men except for her ex-husband. She quickly, however, becomes dissatisfied and physically drained by her new life of sexual adventure. Escape presents itself in the form of a married friend named Paul (Conrad Nagel), who proposes to divorce his wife Dorothy (Judith Wood) so that he and Jerry can begin a new life together. Indeed, Dorothy is Jerry’s counterpoint throughout the film. Whereas Jerry is beautiful, Dorothy has been tragically disfigured in a car accident on the night of Jerry and Ted’s engagement. Jerry and Ted married for love, but Paul, who was heavily intoxicated when the accident occurred, married Dorothy only out of guilt. While Jerry accedes to Ted’s insistence of a divorce, Dorothy refuses to concede marital defeat and will not give Paul the divorce he so desperately desires. Comparing herself to Dorothy, Jerry realizes the many ways that she has wronged her own union with Ted. Jerry thus arrives, as one reviewer explained, at “the realization that her own marriage has been a failure because she has not had the same determination [as Dorothy] to see it through.” She resolves to find Ted, and the two have an emotional reunion in which they promise to make their new marriage a success.

By the conclusion of The Divorcée, Jerry—and by extension, the audience—have learned several lessons. First, Jerry’s desire for marital equality is foolish and unrealistic. The film does not criticize a sex-based double standard; rather, its message is that in trying to emulate men, women can lose sight of what is truly important: love and marriage. The pitiful Dorothy is the true female center of the film—she is not beautiful, but she appreciates the value of being married and is willing to fight for Paul. Moreover, the film says, sexual freedom does not ensure happiness, especially for women. Prior to their mutual transgressions, Jerry and Ted plainly enjoy a fulfilling sexual relationship. Jerry’s life as a wanton divorcée, however, is unsatisfying, and only a chance encounter with Paul prevents her from becoming a hardened seductress. Finally, while divorce is sometimes a necessity, it is also frequently the result of easily avoided misunderstandings. Only in reunification—a theme that understandably became a popular Hollywood ending—can Jerry and Ted rediscover their former happiness and lead constructive lives.

The Divorcée quickly became one of the “stand-out hits of the early summer season” of 1930, and popular demand extended its run throughout the nation. The media’s descriptions of the film—press coverage alternately described it as “a chapter out of modern life,” “a Metro-Goldwyn-Mayer production dealing with a great social problem,” and “the most sophisticated treatment of the question of divorce”—highlighted its varied appeal to audiences. By 1930 divorce had indeed become a reality of everyday American life. At the same time, however, many Americans were deeply anxious about what the escalating divorce rate meant for the family, women, and the very future of the nation. Such fears were fanned by an emergent group of experts who spent the first several decades of the twentieth century identifying a “crisis” in American marriage. These self-appointed experts, some from within the academy and some with little or no formal training in sociology or related fields, came from different parts of the political and ideological spectrum. They agreed, however, that marriage (particularly for the white middle class) was in a period of crucial transition and that married couples could not handle this transition effectively on their own. The general belief that marriage was in trouble was hardly new. Social critics and clergyman, in fact, had been decrying a “marriage problem” for most of the nation’s history. But these early critics had focused their efforts on convincing the American public of the indissolubility of the marital union and, if this former effort failed, of the need for uniform divorce laws in order to prevent most divorces. By the 1920s, however, this debate had grown increasingly stale and the arguments ineffective. The ostracism that had once accompanied the decision to divorce had subsided, and the voices of experts began to supplement, and in many cases replace, those of religious authorities in the national conversation about marriage in the United States.

As the nineteenth-century understanding of marriage as a duty faded, experts worked to convince Americans to take an active interest in the health of their marriages. They focused much of their attention on women, the traditional guardians of the home and the individuals deemed primarily responsible for the continuing changes in family life. Experts believed that if marriage was going to be a “companionate” venture—a relationship based on love and satisfying sexual relations—divorce was an important safety valve for husbands and wives who were trapped in loveless unions. They hoped, however, that by studying marriage in an objective manner, they could develop strategies that would slow the rising divorce rate and, more important, improve the general quality of American marriages. To this end, experts launched research studies intended to quantify marital success and taught marriage courses at universities. Some even began to experiment with a European technique known as “marriage counseling,” anticipating that they could prevent both ill-advised unions and unnecessary marital breakups. These efforts, in turn, laid the groundwork for a new understanding of what it meant to be married in the United States.

The nineteenth-century idealization of married, romantic love was a key ideological origin of this transition. Stereotypes of Victorian prudery aside, many American men and women—especially those from more privileged economic backgrounds—clearly expected to have intimate, loving relationships with their chosen mates. During courtship, they exchanged impassioned letters and expressed hopes that their fervent feelings would not subside after marriage. Once married, they expected to place their obligations to one another and to their growing families above those to their extended families and their civic responsibilities. Nineteenth-century Americans, therefore, gradually began to view marriage as a central life experience from which they could derive happiness and forge satisfying personal bonds. This ideal, of course, was often difficult to achieve. The Victorian belief in the innate differences between men and women, in particular, impeded the full realization of marital intimacy and romance. Many husbands and wives, in turn, struggled to share common experiences and interests with their spouses.

Nineteenth-century marriage advisers (primarily ministers and physicians) nevertheless regarded this new emphasis on love with a sense of trepidation. One root of their concern was the fact that many nineteenth-century Americans believed love to be an uncontrollable emotion. While they considered it to be a prerequisite for marriage, they did not necessarily believe that all love was eternal. If marital love was lost, no prescribed action could recapture the feeling. Critics, therefore, tried to inject a more practical view of marriage into discussions of the institution. They argued that love was a choice and that young married couples could take concrete steps to ensure that their unions remained happy. In print, advisers reminded their readers that if these efforts failed, their marriage vows remained binding. It was desirable, in other words, to be content—rather than miserable— while fulfilling ones’ duties. When nineteenth-century marriage advisers pointedly rejected the possibility of divorce, however, they betrayed a fear that not all Americans understood the sanctity of their marriage vows. This concern was not necessarily misplaced. Divorce, in a very limited form, had been available in the United States as early as the colonial era and spread in the years following the American Revolution. No sooner, it seemed, did Americans create a rationale for dissolving the bonds of empire than they set about creating rules for dissolving the bonds of matrimony. While the two acts—dissolution of empire and dissolution of marriage— existed on vastly different scales, the language used by the patriots and lawmakers to justify both was strikingly similar. Furthermore, the legitimization of divorce beyond the very strict rules of English common law helped the American legal system to sever its dependence on the English model. The theoretical legitimization of divorce as a means of ending a “tyrannical” (or sexually promiscuous) union, in other words, was ingrained in a distinctly American legal system from its onset.

The mere legality of divorce, however, did not ensure that divorce was widely available or publicly condoned after the nation’s founding. Until well into the twentieth century, couples could not divorce legally by mutual consent. While divorce laws varied widely from state to state, “fault” divorce always required that one spouse prove that the other was guilty of adultery, desertion, or some other serious failing. Until the mid-nineteenth century, an aggrieved spouse in many states had to petition his or her state legislature in the hopes of obtaining a divorce decree. Only as the number of petitions proliferated did legislators begin to move divorce cases into the courts.

The nation’s slowly rising divorce rate went largely unnoticed until the 1850s, when it became a rallying point for social critics who saw the rate as irrefutable evidence of a creeping moral decay in American life. In the 1870s and 1880s, many state legislatures made their divorce laws more stringent in (unsuccessful) attempts to decrease the number of couples eligible for divorce. Their efforts became even more urgent once a Department of Labor study in the late 1880s confirmed that the United States led the world in divorce. Interestingly, the conservative opposition to divorce rarely called for its prohibition. The potential for chaos if couples resorted to extralegal means to end their marital unions, paired with the laws’ origins in the Revolution, ensured that calls for an outright ban were muted. Plus, conservatives did not have a ready alternative to divorce for unions in which spouses flouted moral convention by committing adultery or violently assaulting their partners. The common trope of the victimized wife seeking a divorce as a last resort was too powerful an image for divorce conservatives to assail. Instead, they fought unsuccessfully for the passage of a federal divorce law that would supersede the lax laws of so-called divorce havens such as Indiana, South Dakota, and, later, Nevada.

Some men and women in the nineteenth century did support relaxed divorce laws, but their views could hardly be classified as prodivorce. Several women’s rights advocates, notably Elizabeth Cady Stanton, were in favor of divorce because it gave women a modicum of control in the face of an otherwise patriarchal institution. This stance proved divisive, however, as many other activists believed that divorce hurt women by leaving them without financial support. Other divorce supporters asserted that the availability of divorce allowed for better marriages. They pleaded in its favor, therefore, not because the availability of divorce subverted existing marriage norms, but rather because its accessibility augmented the value of marriage to American society. Their primary argument was that since the marital union was perfectible, any unions that failed to reach this high standard should be dissolved, leaving the divorced couple to pursue perfection with better-suited mates. This camp held that, at the present time, divorce was necessary but envisioned a future in which it could be eradicated. The exact details of this plan were vague, although they generally involved making it more difficult to get married. One commentator, for instance, felt that “the greatest social evil in our country is the marrying habit.”

What was truly problematic about the “marrying habit” in the minds of many Americans was not only its relationship to the rising incidence of divorce but also the perception that the wrong types of people were getting married and having children. Specifically, a significant number of the nation’s most educated women were remaining single because (among other reasons) they did not want to give up their careers—as would be expected of them—after marriage. The fight for women’s rights, as well, threatened to separate women from their traditional duties as wives and mothers. Furthermore, the birth rate among native-born, white citizens had been in a steady decline since the early nineteenth century, whereas the immigrant birth rate (considered far less desirable at the time) was quite high. President Theodore Roosevelt undoubtedly did not assuage such concerns when he popularized the idea that given present trends, native-born, white U.S. citizens were in danger of committing “race suicide.” Such rhetoric, when paired with anxieties about the divorce rate, contributed to a full-fledged sense of crisis in regard to the state of family life in the United States. Ironically, only a small percentage of Americans were getting divorced in the late nineteenth and early twentieth centuries. According to some historians there were fewer than two divorces for every thousand marriages in 1870. Certainly, many other couples created their own extralegal marital “exits,” prompted either by relationship woes or other necessity. The evidence nevertheless suggests that most Americans’ motivations for divorcing were hardly frivolous. Court records, for example, indicate that husbands and wives only sought to end their unions in extreme circumstances, such as when an offending spouse had long since disappeared, failed to provide basic necessities, or had committed adultery.

While many divorcing men and women also knew what the courts needed to hear in order to decide in their favor and may well have tailored their cases to fit such expectations, the low divorce rate nevertheless points to the serious personal and social consequences that accompanied the decision to divorce in Victorian America. At the time, after all, “evil” was the word most frequently paired with “divorce” in the popular press and in religious and legal circles. Most popular fiction, in turn, portrayed divorce as shameful and emphasized its harmful effects on individuals and society at large. The deleterious consequences of divorce were particularly evident for women. For wives without independent financial means, the infrequency of alimony allocations meant that divorce could lead to reduced circumstances or even destitution. Plus, divorce clearly represented a grave failure for any woman who embraced a Victorian identity as the moral guardian of the home, especially if her husband had succumbed to temptation and committed adultery. Many Americans believed divorced men and women to be morally suspect, and the divorced faced an uncertain social future based on their decision to end a marriage, no matter what had motivated them to do so.

The contemporary meaning of marriage is no easier to pin down and ascertain if we look at it from a societal, rather than an individual or legal, perspective. It is true that there are more public justifications for marriage from society, but marriage also has multiple potential meanings to the society that constructs and contains it. In fact, the express, explicit reasons for marriage from society’s perspective have not changed all that much over time. Some are mundane, such as the need for a certain formal record keeping and for the assignment of responsibilities and rights among persons (e.g., to facilitate property transfers at death or identify persons responsible for payment of household debts).

There are some benefits for society expressed through its interest in marriage in regard to public health. The application for a marriage license can also be the occasion for mandatory health screening or counseling on genetics. It can be used for social engineering purposes, such as to supply information on the importance of marriage or to educate couples about the purported negative impact on their children, should they have any, from any future decision to separate and divorce.

The American marital entity has an interesting lineage as a legal category. It is directly tied to one religious set of concepts and beliefs. Looking back into its legal history, we see that marriage was not created de novo as an American institution. As a legal relationship, its content and terms were drawn from British institutions that had evolved rules exemplifying rigid relationships.

In England there was a direct historic connection between the state religion and the legal treatment of intimate relationships. Marriage was a sacrament administered by the church and subject to its rules. Under the common-law system in effect in England until fairly recently (as legal institutions go), issues concerning the creation and dissolution of marriage and other aspects of family formation were left to the ecclesiastical courts. It was not until the passage of the Matrimonial Causes Act of 1857 that jurisdiction over marriage and divorce was transferred to civil courts. Consistent with the precepts of their religious approach, these courts viewed marriage as a lifelong commitment. An annulment or, failing that, desertion, was virtually the only route out of an unhappy union. The Church of England’s ecclesiastical courts could grant a divorce “from bed and board,” which allowed couples to live apart but not remarry. Divorce was theoretically available, but only through a special act of Parliament, and between 1800 and 1836, an average of three such bills of divorce were granted each year. Generally, access to divorce was limited until the late twentieth century. This view of the presumed permanence of marriage was also evident in colonial America, where divorce could be granted by a secular judiciary, but this rarely happened. In fact, prior to the mid-twentieth century in the United States, judicial divorce although increasingly more common over time than in the colonial period, was available only for “cause.” “Cause” could include adultery (in New York this was the only cause that justified divorce in 1787), as well as “impotence, adultery, intolerable severity, three years’ willful desertion, and long absence with presumption of death” (Vermont in 1798) and “gross misbehavior and wickedness in either of the parties, repugnant to and in violation of the marriage covenant”. Today in Utah you can seek a divorce on various grounds including adultery, impotence and desertion. Speak to an experienced Draper Utah divorce lawyer to know the various under which you can seek a divorce from your spouse.

An “innocent” spouse could ask the state to sever the marital tie when she or he was successful in demonstrating the “fault” of her or his mate. Fault grounds indicated there had been some egregious offense to the very marital union. States such as New York at that time permitted divorce only for very serious offenses that were considered to undermine the nature of the marital connection, such as adultery. Other states considered the amorphous category of “cruelty” to be a sufficient basis for dissolution. Colonial divorce laws varied considerably by region, with the northeastern states tending to be slightly more liberal than their southern neighbors. In the United States there was no established state religion, but the relationship between religious perceptions and beliefs about marriage and the construction of state principles regarding that connection were still evident, if attenuated. The individual states incorporated common-law concepts and definitions from the religiously shaped English rules into their laws governing family. American judges tracked the religious rhetoric of their English counterparts when considering issues involving the family. Divine laws governed family relationships, setting out the natural order for the individuals who entered them. The content of the marital relationship was also divinely structured. In what has become one of the most famous concurrences in the American legal tradition, in the 1873 Supreme Court case of Bradwell v. Illinois, Justice Bradley made what is still considered the classic statement regarding the common-law perception of the divinely determined distinct roles of husbands and wives. The organization of the traditional family in the British and American legal tradition was also patriarchal, with the husband—“head” of the family—owed obedience and domestic and sexual services from his wife. In return, he was obligated to support her and their children. The husband’s role conferred rights as well as responsibilities, including the right to punish family members. Because he bore responsibility for their actions, a husband had the right to reasonably chastise both wife and children. His support obligations also gave him a corresponding right to the earnings of his wife and children, and to control over their property.

Further, the view of marriage expressed by Justice Bradley and the divinely ordained respective positions of the spouses also limited the expectations and opportunities for married women in the larger society. The marital family’s hierarchically organized and well-defined gender roles placed the spouses in different spheres. Women, excluded from many of the public aspects of life, were perceived as appropriately dependent. As the Bradley concurrence in Bradwell expressed, their true calling was considered to be the home and family.

This ordering of domestic life was intuitive—a response to the natural dependency of women. Common law imposed disabilities on women that supported this ordering of the world. Married women were not able to own property or make contracts. In some instances they could not even be held responsible for their own torts or crimes. Their husbands, perceived as controlling them absolutely, were charged instead.

The common law expressed a structure in which the distinct specializations of the spouses complemented each other: the wage earner and the housewife; the protector and the protected; the independent and the dependent. Each spouse needed his or her complement in order to attain and maintain a whole, complete family entity, one that provided for all its members’ needs. This specialization, bringing together the head and the heart of the family in the form of husband and wife, allowed the marital family to function in a self-sufficient manner, providing both economic and domestic resources to the unit.

This unequal, if complementary, positioning of men and women within the common-law family became problematic for women when divorce became more prevalent under no-fault statutes. These statutes changed a fundamental aspect of marriage. Marriage in its common-law manifestation was considered a lifelong commitment, but no-fault divorces ushered in a revolution in our way of thinking about the permanence of the relationship of marriage. No-fault meant much easier access to divorce. In many states divorce became available on unilateral demand of one spouse even over the objection of the other that the relationship could be salvaged. Men who wanted to be free of their “faultless” wives (as determined under the previous fault divorce statutes) no longer had to bargain with those wives and buy their complicity in the divorce process through concession of property or other economic incentives.

Initiated by both wives and husbands, no-fault opened the divorce floodgate and exposed the economic vulnerability of the common-law assignment of ownership of all wages and property to the wage earner. Wives were not considered entitled to a share of property accumulated during the marriage, since they did not earn the money to buy it and typically title was in the husband’s name. As a result, women found themselves and their children destitute at divorce.

The discouragement of married women from participation in the workplace and investment in a career also had more general negative economic implications. After a divorce, women found that they had to work in the marketplace as well as in the home, yet the old vision of marriage had discouraged them from honing the skills they needed to do so. All this has changed, of course. The no-fault revolution coincided with another revolution in the way we understand the world—the gender equality movement, which ushered in massive changes in all phases of life, including marriage.

No Fault Divorce In Draper Utah

The move to no-fault divorce might have altered our view of marriage, but the gender equality revolution altered the way women perceive their societal, nonfamilial roles. It seems hard to believe that it was less than a century ago that women won important political and civil rights, such as the vote, which was achieved in 1920 with the passage of the Nineteenth Amendment. Even after women achieved the right to vote, they were still excluded from service on juries. Although the first women were summoned to jury service in 1870, as a rule, women were systematically denied or exempted from jury service for the next century, usually for reasons that were considered “benign” and “practical”. It was not until 1994, in J.E.B. v. T.B., that the Supreme Court declared that peremptory challenges based on sex violate the equal protection clause of the Fourteenth Amendment. Until recently, the common-law rule was that a woman’s domicile (essentially her legal place of residence) was always the same as her husband’s. This caused difficulty for many married women, as a person’s domicile is used in determining numerous legal entitlements, categories, and qualifications. Because a woman’s legal identity had traditionally been merged with that of her husband, her domicile was assigned based on her husband’s place of residence, and a woman had no control over this determination. As divorce laws changed and women’s destinies were less tied to the institution of marriage, the inappropriateness of this situation became more obvious. The common-law rule began to change in the 1970s, and the American Law Institute finally ratified this change in 1988.

Prenuptial Agreements

Prenuptial agreements have come to enjoy a presumption of validity, as long as they were made voluntarily and with full disclosure of financial information. Some courts still maintain the additional requirement that an agreement be substantively “fair” to both parties. Even while they do so, recognition is typically given to the changes in gender expectations. If you are planning a divorce and have a prenuptial agreement in place, consult with an experienced Draper Utah divorce law. The lawyer will review your prenuptial agreement and advise you on whether the agreement will be held valid by the court.

Child Custody And Child Support

The past few decades have witnessed a dramatic increase in the divorce rate in the United States and elsewhere, a phenomenon that reflects and influences changing social attitudes toward marriage and the family. When offspring are involved, the divorce process becomes further complicated by considerations over custody and visitation rights. And when the parents themselves cannot resolve these issues, the courts are faced with the difficult task of making a custody decision.

First, despite important differences in the amount of time they spend with their infants and young children, both fathers and mothers are significant figures in the infant’s world from a very early age. By the end of the first year, infants recognize both parents and prefer them to unfamiliar adults. By this time and increasingly during the second year, infants respond differently to each parent, reflecting the development of a rudimentary appreciation of each parent’s unique role in their world. The research indicates that there are more similarities than differences in infant responsiveness to fathers and mothers: They protest separation from either parent, delight in being reunited with them, and play comfortably in the presence of either father or mother. By all accounts, it is apparent that infants develop emotionally salient attachment relationships with each parent by the end of the first year. In short, both mother and father are “psychological parents” to their young infants, even when the father does not assume major caregiving responsibilities. There is every reason to assume that the psychological salience of each parent persists as the child grows older.

Second, even though both parents are important figures in the infant’s world, mothers and fathers differ significantly in their caretaking roles and responsibilities in most homes. Mothers typically assume basic caretaking tasks such as feeding, cleaning, dressing, soothing of distress, and preventative protection from harm. When they play with their babies, they use low-key verbally-oriented and toy-mediated games. In contrast, fathers are typically much less involved in routine caretaking tasks. Rather, they spend a greater proportion of their time engaged in play–specifically, a vigorous rough-and-tumble, physically stimulating kind of play.

The adjudication of child custody disputes raises important and interesting questions, among them the role of fathers as caregivers. For many years, courts have assumed a preference for the mother, contending that a mother’s nurturance and love constitute irreplaceable components of early socio-personality development, particularly during the “tender years.” More recently, however, judges have been using a more egalitarian “best interests of the child” guideline, in which mother and father can compete on a more equal footing for the custody of offspring. Yet this new guideline is a mixed blessing. Although it opens the door to fathers, its conceptual ambiguity permits a wider latitude of subjective judgment on the part of judges, which often results in an implicit maternal preference. The question of what are the child’s “best interests,” and how these may be served by a custody decision, is crucial if this decision-rule is to play a useful role in the custody adjudication process.

In hearing a custody dispute, a judge is faced with an unusual and difficult decision. Most legal disputes focus on the documentation of facts relevant to a case; child custody decisions entail more subjective judgments of parental caregiving competence. Furthermore, custody disputes cannot be resolved on the basis of judicial precedent. Rather, they must be addressed on a case-by-case basis, taking into consideration the unique history and circumstances of the family in question. The judge’s decision-making is further complicated by the predictive nature of the custody award. That is, he or she must consider the long-term ramifications of the decision, including the future economic and living conditions of each parent, the developmental needs of the child, and the potential availability of extrafamilial support systems. Finally, custody decisions rely heavily upon a judge’s discretionary powers in applying legislative guidelines to the particular family in question.

To be sure, most parents who divorce can agree on custody of the children without seeking judicial help. Despite the dramatic increase in the rate of divorce over the past two decades and the broadening of legislative guidelines to put parents on a more equal footing in seeking custody, fewer than 15% of the couples who divorce will proceed with a fully contested custody battle. And, of course, the overwhelming majority of custody awards are to the mother: Fewer than 10% of divorce decrees award children to the father. In many cases, fathers who receive custody do so with the consent of the noncustodial mother.

But although the proportion of disputed custody cases seems to be stable, the absolute number of disputes is increasing sharply due to the rising divorce rate. Coupled with the gradual changes in parental roles evoked, in part, by the increasing number of working mothers, it is reasonable to expect that the number of divorce petitions in which both parents want custody will continue to increase in the years to come. Therefore, it is important to clarify the guidelines by which judges resolve these disputes. The legislative guideline that currently prevails in most states–that is, awarding custody according to the “best interests of the child”–is historically the least explicit. Interestingly, English legal tradition long asserted a paternal preference, reflecting a time in which offspring were regarded as heirs to privilege and wealth and as parental property. Thus the father was viewed as the primary guardian of his legitimate children and, in the event of a dissolution of the marital bond, he assumed exclusive custodial rights. With the changes in social structure wrought by the Industrial Revolution and changes in social philosophy provoked by writers like Locke and Rousseau, this common law assumption gradually broke down. Instead, by the 19th century, both English and American law put the wife on an equal footing with her husband: Both were to receive equal consideration in a custody decision. In practice, however, this usually resulted in an implicit maternal preference, because custody decisions were based on evaluations of parental fitness and wives, as the customary initiators of divorce action, were in a better position to argue against their husbands. Concurrently, an explicit maternal preference when the children were in their “tender years” (generally speaking, under the age of seven) helped to consolidate this implicit bias for the mother in the courts. In short, changing judicial guidelines were reflecting changing social values. Childhood was increasingly viewed as a period of nurturance and education, and mothers typically assumed a major role for both. Early in the 20th century the maternal presumption became consolidated in judicial decision-making, sometimes by explicit statute but more often in the form of case law.

Jurists assumed that, except in instances when the mother was clearly unfit, it was consistently best for the child to benefit from the love and nurturance provided by the mother. They were supported in this assumption by contemporary psychoanalytic theory, which stressed the unique role of a mother’s love to early psychological development.

More recently, however, the maternal presumption has been increasingly questioned in favor of a more egalitarian guideline. Much of the impetus for this reconsideration has come from social critics who regard the maternal preference as inherently sexist and a perpetuation of traditional gender roles. The dramatic rise in the number of working mothers in recent years and the concurrent increase in demand for infant and preschool childcare services are particularly salient manifestations of the changing American family. Thus the traditional family system in which mother is a fulltime caregiver is no longer the norm, and this has undermined the rationale for an explicit preference for mother in custody disputes. In addition, of course, there are a number of instances in which an explicit maternal presumption is clearly inappropriate, such as when the father or another person has assumed sole caregiving responsibilities, or when the mother is abusive or neglectful. Finally, many critics contend that the maternal presumption focused attention on judicial evaluations of parental fitness rather than on child-centered concerns. Thus the purpose of the best interests guideline is to encourage an appraisal of the custody dispute in light of the contributions (actual and potential) of each parent to the child’s present and future needs.

Problems with the Best Interests Of The Child Guideline

This legislative intent may be significantly undermined, however, by the ambiguity concerning how the child’s “best interests” are to be determined. Judges are provided few explicit decision-rules to determine what a child’s best interests are, much less rules that take into account a child’s changing developmental needs. Even when statutes provide broad guidelines defining the child’s best interests, these guidelines are seldom very explicit and judges are offered no guidance concerning which of these interests are most important in determining custody. This leaves judges broad discretion in defining these interests, with the result that custody awards can be determined on the basis of highly subjective criteria that may vary widely on a case-by-case basis. Alternatively, many judges simply adhere to a maternal presumption despite the changed mandate. In short, one of the greatest problems with the best interests guideline is the current lack of certainty concerning how this expression should be interpreted. A fundamental question, for example, concerns which of the child’s many “interests” should predominate in a judge’s deliberations over a custody award. Fundamentally, of course, children require the basic necessities that promote physical well being: adequate nourishment, a warm, safe home environment, sufficient health care, clothing, and an interpersonal environment that is not overtly abusive or oppressive. Beyond these basic necessities, however, there is considerable controversy concerning which of the child’s other needs merit primary consideration. Is it important that the child be with the parent who has provided the most care in the past (i.e., ensure continuity of care)? What of the child’s future educational or religious training? Should jurists be concerned with the child’s “character development”? Is continuity in living circumstances important? Should the child be with the same-sex parent? To put it simply, should the child’s best interests be strictly construed to mean only the basic requirements of adequate caregiving, or should the courts be more interested in the child’s optimal development?

There is no easy answer to this question, and opinions vary widely. Some legal scholars advocate a more limited interpretation of the child’s interests in order to curtail the court’s discretionary powers in deciding child placement cases (e.g., custody, foster care, etc.). On the other hand, some experts argue that “psychological parenting” should be the primary consideration in determining child placement; that is, to whom has the child developed a lasting emotional bond? There is, in short, no clear consensus concerning what constitute the child’s primary interests in determining a custody award.

Assuming that the best interests guideline is meant to include factors other than physical well being alone, a second question concerns the limits of this construction. That is, how do we evaluate the parental caregiving practices that promote the child’s best interests? Is one parent’s warm but permissive approach preferable to another’s less affectionate limit-setting? Should judges prefer a custody arrangement that is likely to foster a strong traditional gender identity in the child? These and a range of similar questions surround most custody decisions and concern the implicit goals and values that underly a court’s preference for one parent over the other.

It is doubtful that there is much broad consensus within most Western societies concerning these child-rearing goals and practices. As with differences in lifestyle, parents vary greatly concerning the traits and characteristics they seek to develop in their children, and they employ a range of practices for achieving these goals. This diversity contributes to the heterogeneity of a society, in fact, and courts have traditionally hesitated to infringe upon parental freedom to raise their children as they prefer. Indeed, apart from those instances in which state intervention is mandated by manifest child abuse or neglect, greater concern has been voiced over the state’s overregulation of parental decision-making in areas such as education, religious training, and medical care. In short, society encourages a great deal of freedom and diversity in child-rearing goals and practices and, by and large, the courts have insured this freedom. In the adjudication of child custody disputes, however, judges frequently rely on subjective judgments of a parent’s caretaking style that are often based on personal values and beliefs. Sometimes these judgments concern the “moral climate” of the home. In some cases, a judgment is based on a parent’s occupational commitments, political affiliations, expectation of remarriage, or economic circumstances rather than his or her relationship with the child. In short, these judgments of caretaking often involve intuitive, usually unarticulated value judgments that are relative to the values and beliefs of the judge determining a custody settlement. These values are likely to reflect sociocultural and social class biases as well as religious beliefs and moral attitudes. Importantly, they usually entail judgments of parental fitness, with secondary regard for their actual or potential effects upon the child. Thus a second difficulty with the best interests guideline concerns judging the parental practices that contribute to a child’s best interests. In the absence of a prevailing social consensus, judges tend to use their own intuitive value judgments that may or may not reflect child-centered concerns.

It is important to note, however, that intuitive judgments of parental practices are not limited to jurists. Indeed, “expert testimony” from various sources, including psychiatric witnesses and social workers, has been criticized as being largely subjective and value based, and thus unreliable. In other words, any subjective assessment of a family is likely to result in speculative and unreliable judgments. Furthermore, this unreliability is especially likely when the family is under stress (as in a custody battle), when normal patterns of interaction are affected by emotional turmoil. Thus it is doubtful whether assessments of family interaction at the time of a custody dispute–by a judge or an “expert witness”–yield meaningful information about parent-child relationships. A third ambiguity in the best interests guideline concerns the time frame within which a child’s interests are appraised. Divorce presents parents and children with immediate and difficult adjustments. Should judges seek a custody arrangement that helps the child to negotiate these short-term transitions? Or should longer-term concerns take precedence if they conflict with more immediate needs? These, too, are questions of judgment about which legislative guidelines or judicial precedent offer little guidance.

Taken together, the major difficulty with the best interests guideline is the broad interpretational latitude permitted judges in deciding custody disputes. Disagreement exists concerning which of the child’s many interests should be included in a judge’s deliberations, how these interests are translated into judgments of parental child-rearing practices (and how these practices should be assessed), and whether short-term or long-term concerns should take precedence. These conceptual ambiguities thus delegate a good deal of discretionary power to judges, with the result that custody decisions may be based on implicit value judgments that are relative and thus inappropriate to legal decision-making. Of course, these interpretational problems are most acute when the child’s best interests are broadly construed, but to some extent they are inherent within any such inclusive formulation.

In view of this, some legal scholars have called the process of child custody adjudication “indeterminate”–that is, there are often no reliable, objective and legally satisfying ways of awarding custody to a parent according to the child’s best interests. Whereas some custody cases are always relatively easy to resolve (such as when one parent is abusive, or has abandoned the family, and the other parent has not), for the majority of cases there exist no generally accepted, easily applied decision-rules by which the child’s best interests may be determined fairly and objectively. The same case presented to two judges may be decided in very different ways. The indeterminacy of child custody adjudication also has important implications outside the courtroom. Legal guidelines usually serve as negotiating parameters by which the parties to a dispute can assess their relative chances of success in adjudication and modify their demands and expectations accordingly. Under the best interests rule, fathers and mothers are provided little information of this kind. Thus articulate and consistent custody guidelines are necessary both for the adjudication process and for the interpersonal bargaining that precedes it. What is the solution to judicial indeterminacy in custody cases? Some have suggested a return to more specific, all-encompassing legislative decision-rules (e.g., custody awarded to the mother if the child is age 5 or younger; custody awarded to the same-sex parent with older children). This would limit judicial discretion, but a proportion of disputes would certainly be resolved unfairly. Another proposal is for a greater emphasis on predivorce mediation to encourage parents to seek their own solution to the custody dispute short of a court battle. A third–and more radical–alternative is to decide custody disputes by some random process: in essence, a judicial coin-flip.

Such an approach would acknowledge the inherent inability of the court to make an objective, reliable custody award, and would prevent the noncustodial parent from feeling that he or she was judged to be a less adequate parent than the spouse with custody.

Short of these alternatives, it is clear that judicial decision-making in custody disputes entails highly idiosyncratic considerations that must be addressed on a case-by-case basis. The history of the family in question, the wishes of the child, the nature of the temporary custody arrangements, the quality and quantity of predivorce parental caregiving involvement, and prospective living conditions for the child with either parent are all considerations (to name a few) that should figure prominently in a custody award and that are likely to vary from one family to another. The important question, however, is whether there exists a valid overall framework within which these factors can be considered and by which further information may be requested and evaluated. In other words, judges and lawyers require some general understanding of the nature of family functioning in intact and divorced homes in order to properly interpret and weigh these considerations relevant to the child’s best interests. Operating within such a framework, jurists may be less likely to base custody decisions upon idiosyncratic and value-laden considerations. It is in providing such an overall knowledge base that psychological research may have a limited but important role in the adjudication of child custody disputes. This is particularly true concerning the role of fathers as caregivers, which is the topic of this review.

One very important factor differentiating mother-child from father-child relationships is the quantity of caretaking. In traditional homes, of course, the mother is usually relegated childcare as well as other domestic chores while fathers spend most of their day away from the home. With the reappraisal of gender roles during the last decade, one might anticipate a softening of these traditional childcare assignments within the home. Several recent studies of time use suggest, however, that fathers are still largely uninvolved in routine caretaking tasks.

Taken together, these differences in the quality and contexts of mother-infant and father-infant interaction reflect a basic difference in each parent’s role vis-à- vis the baby. In most instances, the mother is the infant’s primary caretaker, even when she is employed outside of the home. That is, she more typically provides for the baby’s basic needs–feeding, bathing, diaper-changing, soothing of distress, preventative protection from harm, and similar ministrations–as well as being a salient social partner in low-key play. In contrast, the father’s typical role as a secondary caretaker is less focused around specific caregiving activities and more focused on vigorous, physically stimulating play with the baby. Play is thus a more basic interactive context for infants with their fathers than with their mothers; in addition, different kinds of play activities also distinguish each parent. In short, infants begin to know and develop expectations for each parent in somewhat different social contexts.

Does this division of roles mean that fathers are less competent than mothers in basic caretaking tasks? Evidently not. If you are a father, speak to an experienced Draper Utah divorce lawyer for advice on how you can get custody of your children.

Fathers are competent and responsive caretakers, whether their competence is appraised in terms of the occurrence of certain caretaking behaviors or their responsiveness to infant cues. Similarities in mother-infant and father-infant nurturant and caretaking activities have been noted for parents in other cultures as well. Such findings are ironic in view of the strong tendency of fathers to eschew caretaking roles at home. In other words, fathers can be highly competent caretakers when called upon to do so, even though they seldom assume such responsibilities spontaneously. Instead, they spend a greater proportion of their time engaged in vigorous, physically active play with their infants.

Taken together, the research on mother-infant and father-infant relationships indicates that fathers are preferred as play partners from a relatively early age, and mothers are preferentially sought when infants are fatigued, alarmed, or stressed. As earlier indicated, the paternal preference is unsurprising in view of the contexts in which infants typically encounter their fathers and the kinds of exciting, physically active games fathers play. Infants seem to learn that fathers are fun to play with during the second year. Similarly, infants’ preferences for their mothers under stress are also unsurprising in view of the maternal caretaking role in most families. Mothers typically feed, bathe, clothe and, importantly, comfort their babies when the infants are distressed; infants seem to learn early on that their mothers are a source of soothing. Thus mothers and fathers differ importantly both in their caretaking roles and, it seems, in how they are perceived by the baby from an early age. Mothers as primary caregivers in most families spend a greater amount of time with their infant sons and daughters and assume greater responsibility for routine caretaking tasks, even when they also work outside of the home. Fathers as secondary caregivers spend less time with infants overall but devote a greater proportion of their time to physically vigorous, arousing play. These differences in parental involvement are manifested early in differences in infant responsiveness. Infants prefer their fathers as play partners and respond more positively to them in these situations. Under conditions of stress, however, they turn to mothers, reflecting different expectations for each parent that develop during the first year. In short, infants learn about their mothers and fathers in different contexts, and develop different expectations for them as a result.

Often a child can become a mere cipher in conflicts over custody. Finding the right balance between the claims of two separating partners is not easy. Judges have more commonly been willing to award custody of young children to mothers on the ‘tender-years’ principle: the idea that, because of the strong natural bond between mother and child, if young children cannot be with both parents, they are better off with their mother. So, while the case for women in the custody battle may be strong, it is increasingly recognized that men, too, have grievances to be addressed and that current law can disadvantage them in a number of ways. In the vast majority of cases, custody of children on divorce is awarded to women, and contact orders, largely made to men, are often broken. There are particular cases where court decisions are likely to strike anyone as totally unfair—a non-working wife who ends a marriage because of another liaison may well be awarded children, house, and most of the couple’s financial assets, notwithstanding her responsibility for the collapse of their joint family-building project and her lack of any financial input. She is free to introduce unofficially into the family structure another man to replace the natural father in the lives of her children. With the growth of these disadvantages has come the loss of many of the previous advantages of marriage for a man, as traditionally the best way of securing not only a steady sex life, but also status in the community, and a substantial and satisfactory personal project in which he could reasonably regard himself as a vital element.

Given these tensions, it is not difficult to see why the closing years of the twentieth century should have seen demands for a new approach to child custody based on the principle that, even if divorce can end relationships between adults, it is important to maintain the child–parent relationship. The presumption is that a continuing relationship with both parents will enable both of them to offer physical, emotional, and financial support to their children. The practical goal, then, becomes a matter of seeking to ensure reasonable contact for both parties. But ‘reasonable contact’ is an imprecise concept, varying from contact on alternate weekends to a more extensive and rigid division of time mapped out in terms of days or even hours per year. So joint or shared custody, in the sense of children’s time being relatively equally divided between parents, has become the arrangement of choice for some on the basis that it finally establishes the principle of equality and the equal legal standing of women and men. It may also be promoted from the child’s point of view, as it is, for example, in parts of the USA, where co-parenting may be advocated as a matter of a child’s rights—in this case, a right to live with either parent for some of the time. But the burden such arrangements impose on children should not be underestimated. It is often argued that disruption for children can be justified if it represents an escape from extremely difficult domestic situations. But, in general, the effects of divorce on children are poor and can be measured in terms of low educational achievement, difficult relationships with parents, especially fathers, and other emotional problems.

So all this leaves us with the fundamental question of who should care for the child when a couple splits up. For this we need to understand the judgement King Solomon passed. There is, though, more to the story of Solomon’s judgement than this. Faced with the equal balance of the two rival claims, Solomon intends, or at least pretends to intend, to take a sword and split the child in two. The false claimant is ready to accept this. But the true mother calls for an end to the legal battle and its dire outcome, saying that she is ready for the sake of her child to allow it to go to the other claimant. Solomon gives the child to her for, by her willingness to sacrifice her own interest, she has unintentionally demonstrated the truth of her claim.

In many ways, equal joint custody resembles the solution proposed by King Solomon—the child must live a split life between two homes, with little time or opportunity to create a place for itself in either, and much of its potential time with peers taken up by outings with a displaced parent. In these circumstances, it may be that some parents will express their love for the child by relinquishing maximum rights, asking only reasonable and modest access, in order to give the child a life of its own.

Cases involving extreme violence represent, of course, the outer limits of the way in which custody can serve the needs or preferences of parents and ignore the vulnerability of children. But, even where violence is not a factor, contact and residence rulings can be a way, deliberate or not, for one parent to exercise control over the other, making it impossible for the other parent to gather up the threads and start again, free from harassment and disruption. There are no easy answers to post-separation arrangements looked at from the point of view of the children themselves. It would be better if parents could recognize this and acknowledge that their own decision to split up means that, as far as their children are concerned, their security, home life and frame of reference for living their lives has been unpicked. If it is difficult to secure fairness for both parents, it is even more difficult.

Reconstituted Families

In practice, separations often bring into already complex situations new people, both adults and children, who have their own needs and perspectives. For, while the initial situation may be focused on the problem of how two individuals are to share their children’s lives between them, in practice one or both partners may bring someone else into the picture, posing a challenge of adjustment both for the adults and for their children. As far as the adults are concerned, it may be difficult to accept that their children are living with the person who has replaced them in their partner’s life. It will be difficult if the new mother or father is not caring properly for the children, but in some ways just as difficult if they are doing so successfully. A mother, particularly if she is not responsible for the breach, may find it very hard to accept that the woman who is responsible for it has taken over her role and formed a bond with her children. The same applies to fathers. A man, too, may find it hard to accept the reality of his children living with the man who has taken over his own role.

Custody and access are, of course, intended to protect parents’ relationships with their children and also to secure the best interests of those children. But these are difficult goals to reconcile. Even in the best of cases, children do not like to be asked to choose between their parents. Listening to the child’s voice is a worthwhile step, but no one should be deceived into thinking that that is a universal panacea. Like the apocryphal traveller whose request for advice evokes the response ‘I would not start from here’, in most cases the child does not want the split in the first place. What children most need and most want is what normal family life provides: a chance to build their own lives and relationships with their peers, with their parents in the background for support and comfort, and preferably not as judicially ordered companions for parent and child outings.

What children want, sadly they will not always get, and sometimes society itself will pay the price. But it is worth adults at least being clear about what they are doing and not deluding themselves with anodyne suggestions that their children will be happier, or at least benefit, when their aspirations for simple childhood constants are shattered and exchanged for a new life that includes mobility, fluctuating relationships, new ‘siblings’ to negotiate with, and new parental whims to accommodate. The old mantra ‘I am only staying with you for the sake of the children’ may often have been the simple truth in the past and in many cases could have been the better choice. From the child’s point of view, it may still be so. For, on the whole, children like families—the family is a child-friendly institution and only secondarily there to keep adults happy.

Child Abuse

If your spouse is abusing your child, you should seek custody of your child. Proving child abuse is difficult as the child may be scared to speak out against the abusive parent. You will require the services of an expert witness.

Although no uniform theory is available to provide consistent answers to disputed issues between conflicting parties, there should be a common goal for all professionals acting as expert witnesses. That is, all theories and expert witnesses should work toward the best interest of the child. However, different professionals may disagree as to what is in a child’s best interest. Under this premise, lawyers need to know the fundamental similarities and differences of all theories and models of child abuse and neglect such that expert witnesses can be called upon who will select the most accurate and impartial view of the child’s best interest. In short, the knowledge provided by the expert witness should serve the functions of verification, confirmation, conversion, and education in order to increase maximal judicial validity of evidence presented in court.

Responsibilities Of The Lawyer In Using Expert Witnesses

In legal proceedings dealing with victimization, the court may require concrete and comprehensive information from experts in order to establish the evidence of responsibility, causality, liability, and damages. Therefore, the lawyer involved will need to have accurate knowledge of the (1) perpetrator (e.g., intention), (2) victim (e.g. impact), (3) victimization processes (e.g., form of maltreatment), and (4) social and legal dispositions (e.g., removal of the victimized child from the abusive environment).

Resolution for these issues relies heavily on subjective explanations and interpretations of circumstantial evidence and facts. Because of the subjective nature in explanations or inferences, the experts used by the legal profession will thus generate possibly controversial and incompatible opinions about various objective phenomena of child abuse and neglect. Therefore, in dealing with the diverse theoretical backgrounds of the experts, lawyers need to have a clear understanding of evaluation criteria for assessment of expert testimony. That is, each expert should and can be characterized in terms of his/her theorization of child abuse and neglect. Since clinical and psychological testimonies are frequently based on some theories that may have no empirically verified foundations, lawyers handling of child abuse and neglect cases, with or without the assistance of other professions, should always evaluate the admissibility of expert testimony in reference to multidisciplinary theories and knowledge. Therefore, the judicial validity of future expert testimony will rely heavily on the competency and willingness of lawyers in testing its admissibility in the areas of necessity, reliability, validity, understandability, and importance.

Above all, it relies on the ability of lawyers to identify different origins of various theoretical foundations used and to differentiate their feasibilities for application to the legal issues involved.

Child Support

In regard to the state maintaining a primary interest in the dependency component of the parent-child relationship, the cases and legislation are very clear. The economics of the tie are for state determination. Husband and wife cannot negotiate child custody and support free from judicial scrutiny and approval. The state retains an interest in these arrangements and the right to assess and alter any settlement the spouses may reach upon divorce even to modify existing arrangements in the best interests of the child.

Economic or dependency issues concerning the ongoing needs of children that are addressed in the divorce context can be compared with the nonmarital situation. Historically, marriage defined the status of children in relation to their parents and the claims they could make upon or through them. The presence or absence of marriage determined which children were labeled “legitimate” or “illegitimate” and, thus, either granted or denied benefits accrued by their parents under state insurance and compensation schemes.

The U.S. Supreme Court has reduced the significance of marriage in regard to the parent-child connection. It did so first in regard to mothers when, in Levy v. Louisiana, it held that denying damages to “illegitimate” children as a result of the wrongful death of their mother is a violation of the equal protection clause of the Fourteenth Amendment. But fathers’ connection to children has also evolved so as to not require its mediation through the institution of marriage. Unmarried fathers now have rights and responsibilities for their children that were not part of the common law scheme of things. Nonmarital children are entitled to benefits historically reserved for their marital counterparts, such as parental support, workers compensation benefits, and the right to recovery in the event of a parent’s wrongful death. Such improvements recognize the reality of dependency is more important than the status of the parents’ relationship.

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